Bar to Appointment of Persons Who Fail To Register Under Selective Service Law

OFFICE OF PERSONNEL MANAGEMENT <CFR>5 CFR PART 300</CFR> <DEPDOC>[Docket ID: OPM-2023-0014]</DEPDOC> <RIN>RIN 3206-AO37</RIN> <SUBJECT>Bar to Appointment of Persons Who Fail To Register Under Selective Service Law</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Personnel Management. <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Office of Personnel Management (OPM) is proposing to revise the procedures for determining whether an individual's failure to register with the Selective Service System (SSS) was knowing and willful. These changes are intended to ensure that individuals in these circumstances have an opportunity to fully explain their failure to register and that the determination is based on a more complete record. In addition, the rule proposes to enable Federal agencies to make initial determinations as to whether an individual's failure to register with the SSS was knowing and willful. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before April 8, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments, identified by the docket number or Regulation Identifier Number (RIN) for this proposed rulemaking, by the following method: • <E T="03">Federal eRulemaking Portal: https://www.regulations.gov.</E> Follow the instructions for sending comments. All submissions must include the agency name and docket number or RIN for this rulemaking. Please identify your comments on the regulatory text by subpart and section number; if your comments relate to the supplementary information, please refer to the heading and page number of this proposed rule. All comments received will be posted without change, including any personal information provided. Please ensure your comments are submitted within the specified open comment period. Before finalizing this rule, OPM will consider all comments we receive on or before the closing date for comments. OPM may make changes to the final rule in light of the comments we receive. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Michael Mahoney at <E T="03">mike.mahoney@opm.gov,</E> by fax at (202) 606-4430, TDD at (202) 418-3134, or by email at <E T="03">employ@opm.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> OPM proposes to change its procedures for determining whether an individual's failure to register with the SSS was knowing and willful. Specifically, OPM is proposing to clarify the applicable standard used to determine what constitutes “knowing and willful,” to establish new procedures for individuals to submit evidence in support of their non-registration, and to allow Executive agencies to make the initial determination as to whether an individual's failure to register with the SSS was knowing and willful. OPM is proposing these changes to ensure that individuals in these circumstances have an opportunity to fully explain their failure to register and that the determination is based on a more complete record. OPM's proposal to allow Executive agencies to conduct the initial adjudication should alleviate Federal agencies' having to delay the recruitment process to send cases to OPM for adjudication. In its March 2021 report, <SU>1</SU> <FTREF/> the National Academy of Public Administration (NAPA) recommended that OPM adopt a more decentralized and risk-based approach to executing its transactional approval and oversight responsibilities. Specifically, NAPA recommended that OPM delegate, to the maximum extent possible, decision-making authorities to agencies, and conduct cyclical reviews to verify that appropriate actions were taken. NAPA's Rec. 2.5 was incorporated into OPM's Strategic Plan as Objective 4.2, which reads as follows: “Increase focus on Governmentwide policy work by shifting more low-risk delegations of authorities to agencies.” OPM's proposal is consistent with NAPA's recommendation to decentralize and to allow agencies to conduct more decision making. <FTNT> <SU>1</SU>  National Academy of Public Administration. “Elevating Human Capital: Reframing the U.S. Office of Personnel Management's Leadership Imperative” <E T="03">https://www.volckeralliance.org/sites/default/files/attachments/OPM-Final-Report-National-Academy-of-Public-Administration.pdf.</E> </FTNT> <HD SOURCE="HD1">Background</HD> Under the Military Selective Service Act of 1948, as amended (hereafter referred to as “the Act”), all male citizens and every other male person residing in the U.S. between the ages of 18 and 26 who were born after December 31, 1959, are required to register with the SSS, unless the Act exempts them. (50 U.S.C. 3802). In addition, the Act establishes that “[e]very person shall be deemed to have notice of the requirements of this chapter upon publication by the President of a proclamation or other public notice fixing a time for any registration under section 3802 of this title.” (50 U.S.C. 3813). In 1980, President Carter issued such a proclamation (Proclamation No. 4771, July 2, 1980), which required that registration begin on July 21, 1980. That proclamation, as amended, remains in effect. Every covered male is now deemed to have had notice of these requirements by virtue of that Act and Proclamation 4771, as amended. In 1985, Congress enacted 5 U.S.C. 3328, which provides that men who are born in 1960 or later and who are required to, but did not, register under section 3 of the Act (now codified at 50 U.S.C. 3802) generally are ineligible for Federal service. Section 3328 provides that an individual born after 1959 and required to register and “who is not so registered or knowingly and willfully did not so register before the requirement terminated or became inapplicable to the individual, shall be ineligible for appointment to a position in an Executive agency,” unless the individual can establish “by a preponderance of the evidence that the failure to register was neither knowing nor willful.” Section 3328 also provides that OPM, “in consultation with the Director of the Selective Service System, shall prescribe regulations to carry out” section 3328, including “provisions prescribing procedures for the adjudication of determinations of whether a failure to register was knowing and willful.” In 1987, Congress amended section 3328 to allow OPM to establish decision-making authority with agencies through rulemaking (Pub. L. 100-180, 101 Stat. 1019, December 4, 1987). As noted above, section 3328 applies only to males who are (or were) required to register. Certain individuals may be (or may have been) exempt from registration as provided by sections 3 and 6(a) of the Act (50 U.S.C. 3802 and 3806(a)) or by Presidential proclamation. Examples of individuals who may be so excluded are: (1) Certain non-immigrant aliens who are residing in the United States temporarily, such as those on visitor or student visas; (2) individuals who are unable to register due to circumstances beyond their control, such as being hospitalized, institutionalized, or incarcerated; and (3) members of the Armed Forces on full-time active duty, as well as cadets and midshipmen at the United States service academies. An individual covered by the Act who has not registered can do so at any time before reaching age 26. Once the individual is age 26, he may no longer register and is no longer able to correct his failure to register. Consequently, as a general rule, these cases arise only when an applicant fails to register prior to a temporary offer of employment, or during an employee's employment tenure, and the applicant or employee is age 26 or older and the possibility of registration is precluded. The current regulations, promulgated in 1987, establish that agencies should “request a written statement of Selective Service registration status from each covered individual at an appropriate time during the employment consideration process.” (5 CFR 300.704(a)). Accordingly, OPM is called upon to adjudicate a case involving failure to register only if registration is precluded due to the covered individual's age. In 2011, OPM issued a notice of proposed rulemaking that was substantively similar to this proposed rule. 76 FR 73521, November 29, 2011 (“2011 proposed rule”). OPM did not finalize the 2011 proposed rule due to competing priorities (RIN 3206-AM06 withdrawn March 20, 2017). Although this proposed rule largely renews the 2011 proposal, OPM considered prior comments in formulating this proposed rule. (See the discussion in “Agency Adjudication” and the discussion regarding § 300.705 in “Proposed Changes in this Rule.”) <HD SOURCE="HD2">The Applicable Standard</HD> The statute OPM is required to implement contains an ambiguity with respect to an individual who was required to register and failed to do so. Certain provisions of section 3328 ( <E T="03">e.g.,</E> subsection (a)(2)) indicate that a failure to register that is both knowing and willful is necessary to make the individual ineligible for Federal employment. The third sentence of subsection (b) of section 3328, however, states that OPM's procedures must require that a determination that a failure to register was knowing and willful “may not be made if the individual concerned shows by a preponderance of the evidence that the failure to register was neither knowing nor willful.” This provision suggests that a failure to register that is either knowing or willful would suffice to make the individual ineligible for employment. There is substantial case law, under the Act and in other contexts, concerning the meaning of the terms “knowing” and “willful.” Although OPM acknowledges that the terms have substantial overlap, it is possible, at least theoretically, that a failure to register could be knowing but not willful or the reverse. Accordingly, OPM believes that there are divergent poten ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 66k characters. 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