Release of Official Information in Litigation and Presentation of Witness Testimony by Selective Service System (SSS) Personnel (Touhy Regulation), 41051-41056 [2023-13374]
Download as PDF
<![CDATA[
lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 120 / Friday, June 23, 2023 / Proposed Rules
assumed cubic spline for the forward
interest rate function can be described
as a linear combination of B-splines,
with five parameters, which are
determined taking into account the two
coefficients for the bond-quality
adjustment variables described in
paragraphs (d)(2)(iii)(B) and (C) of this
section and the coefficient for the hump
adjustment variable described in
paragraph (d)(2)(iii)(D) of this section.
The five parameters and three
coefficients are determined using the
bond data weighted as described in
paragraph (d)(2)(iv) of this section. After
this weighting of the bond data, the five
parameters and three coefficients are
chosen to minimize the sum of the
squared differences between the bid
price for each of the bonds (or ask price
for commercial paper) and the price
estimated for each of those bonds
determined using the specified
parameters and coefficients, and taking
into account the bond’s coupon rate,
number of years until maturity, and
rating.
(B) Adjustment factor for share of
bonds that are AA-rated. The first
adjustment variable is based on the
proportion of bonds that are rated AA
within the universe of bonds in the data
set that are rated AA or AAA, weighted
by par value. In the case of an AAArated bond the adjustment variable
described in this paragraph (d)(2)(iii)(B)
is equal to the product of the proportion
described in the preceding sentence and
the number of years until maturity for
the bond. In the case of an AA-rated
bond the adjustment variable described
in this paragraph (d)(2)(iii)(B) is equal to
the product of (1¥ that proportion) and
the number of years until maturity for
the bond. In the case of an A-rated bond,
the adjustment variable described in
this paragraph (d)(2)(iii)(B) is set to 0.
(C) Adjustment factor for share of
bonds that are A-rated. The second
adjustment variable is based on the
proportion of bonds rated A within the
universe of bonds in the data set,
weighted by par value. In the case of an
AAA-rated bond or an AA-rated bond,
the adjustment variable described in
this paragraph (d)(2)(iii)(C) is equal to
the product of the proportion described
in the preceding sentence and the
number of years until maturity for the
bond. In the case of an A-rated bond the
adjustment variable described in this
paragraph (d)(2)(iii)(C) is equal to the
product of (1¥ that proportion) and the
number of years until maturity for the
bond.
(D) Hump adjustment variable. The
hump adjustment variable is a
mathematical function that is a cubic
spline in the interval from 10 years
VerDate Sep<11>2014
16:01 Jun 22, 2023
Jkt 259001
maturity through 30 years maturity
made up of two polynomials with a
smooth junction (as described in
paragraph (d)(2)(ii)(A) of this section) at
20 years maturity. The spline rises from
zero at 10 years maturity to 1.0 at 20
years maturity, then falls back down to
zero at 30 years maturity. The hump
adjustment variable is zero for
maturities less than 10 years and
maturities greater than 30 years.
(iv) Weighting of bond data. The bond
data are weighted in two steps. First,
equal weights are assigned to the
commercial paper rates at the short end
of the curve, and the par amounts
outstanding of all the bonds are rescaled
so that their sum equals the sum of the
weights for commercial paper. Then, the
squared price difference for each bond
is multiplied by the bond’s rescaled par
amount outstanding, and the squared
difference for each commercial paper
rate is multiplied by the commercial
paper weight. In the second stage,
applicable for bonds with duration
greater than 1, the weighted squared
price difference for each bond from the
first stage is divided by the bond’s
duration.
(3) Data used—(i) In general. Except
as otherwise provided in this paragraph
(d)(3), the bonds that are used to
construct the daily corporate bond yield
curve for a business day are bonds with
maturities longer than a 1⁄2 year, with at
least two payment dates, and that:
(A) Are designated as corporate;
(B) Have high quality ratings (AAA,
AA, or A) as of that business day from
the nationally recognized statistical
rating organizations;
(C) Have at least $250 million in par
amount outstanding on at least one day
during the month;
(D) Pay fixed nominal semiannual
coupons and the principal amount
at maturity; and
(E) Mature not later than 30 years after
that business day.
(ii) Excluded bonds. The following
types of bonds are not used to construct
the daily corporate bond yield curve for
a date:
(A) Bonds not denominated in U.S.
dollars;
(B) Bonds not issued by U.S.
corporations;
(C) Bonds that are capital securities
(sometimes referred to as hybrid
preferred stock);
(D) Bonds having variable coupon
rates;
(E) Convertible bonds;
(F) Bonds issued by a governmentsponsored enterprise (such as the
Federal National Mortgage Association);
(G) Asset-backed bonds;
(H) Callable bonds unless the call
feature is make-whole or the call feature
PO 00000
Frm 00007
Fmt 4702
Sfmt 4702
41051
is exercisable only during the last year
before maturity;
(I) Putable bonds;
(J) Bonds with sinking funds; and
(K) Bonds with a par amount
outstanding below $250 million for the
day for which the daily yield curve is
constructed.
(iii) Durations equal to or below a 1⁄2
year. The data for durations equal to or
below a 1⁄2 year that is used to construct
the daily corporate bond yield curve
consists of AA financial and AA
nonfinancial commercial paper rates, as
reported by the Federal Reserve Board.
*
*
*
*
*
(h) Applicability date of regulations.
This section applies to months that
begin more than 15 days after the date
final regulations issued pursuant to
these proposed regulations are
published in the Federal Register. For
rules that apply for earlier periods, see
§ 1.430(h)(2)–1, as it appeared in the
April 1, 2022, edition of 26 CFR part 1.
Douglas W. O’Donnell,
Deputy Commissioner for Services and
Enforcement.
[FR Doc. 2023–12693 Filed 6–22–23; 8:45 am]
BILLING CODE 4830–01–P
SELECTIVE SERVICE SYSTEM
32 CFR Part 1660
RIN 3240–AA02
Release of Official Information in
Litigation and Presentation of Witness
Testimony by Selective Service
System (SSS) Personnel (Touhy
Regulation)
United States Selective Service
System.
ACTION: Proposed rule.
AGENCY:
The Selective Service System
(SSS) is publishing new regulations
titled, ‘‘Release of official information in
litigation and presentation of witnesses
testimony by Selective Service System
(SSS) personnel’’ (referred to as Touhy
regulations). These new regulations will
ensure consistent processing of Touhy
requests; clarify the responsibilities of
all parties in the Touhy process; and
provide additional information about
criteria that SSS and its Components
should consider in the Touhy process.
DATES: Comments must be received 60
days from publication date.
ADDRESSES: You may submit comments,
identified by docket number and/or
Regulatory Information Number (RIN)
number and title by email to
dlauretano@sss.gov, or by mail to:
SUMMARY:
E:\FR\FM\23JNP1.SGM
23JNP1
41052
Federal Register / Vol. 88, No. 120 / Friday, June 23, 2023 / Proposed Rules
Selective Service System, General
Counsel, 1515 Wilson Boulevard, Suite
500, Arlington, Virginia 22209–2425.
Instructions: All submissions received
must include the agency name and
docket number or RIN for this Federal
Register document. The general policy
for comments and other submissions
from members of the public is to make
these submissions available for public
viewing on the internet at https://
www.regulations.gov as they are
received without change, including any
personal identifiers or contact
information.
Mr.
Daniel A. Lauretano, Sr., General
Counsel, 703–605–4012, dlauretano@
sss.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
lotter on DSK11XQN23PROD with PROPOSALS1
A. Summary of New Regulatory
Provisions and Their Impact
The SSS is creating its Touhy
regulations to: (1) Promote consistent
processing of Touhy requests among the
SSS and SSS Components; (2) clarify
the responsibilities of all parties in the
Touhy process; and (3) provide
additional information about criteria
that SSS should consider in the Touhy
process. The new regulations set forth
the procedures to be followed with
respect to a demand seeking official
information or employee testimony
relating to official information for use in
a legal proceeding. The new regulations
also set forth certain definitions. The
new regulations apply to all SSS
personnel (see § 1660.3), in particular,
members and personnel of the Office of
the Director, National Headquarters
Directorates and Offices, Region Offices,
the Data Management Center, the
National Appeals Board, District
Appeals Boards, Local Boards
(including panels, multicounty, and
intracounty boards), and all other
organizational entities within the SSS
(referred to collectively in this part as
the ‘‘SSS Components’’).
The new regulations are intended
only to provide guidance for the internal
operations of the SSS, without
displacing the responsibility of the
Department of Justice to represent the
United States in litigation. The new
regulations do not apply to the release
of official information or the
presentation of witness testimony in
connection with:
(1) Administrative proceedings or
investigations conducted by the SSS.
(2) Security-clearance adjudicative
proceedings.
(3) Administrative proceedings
conducted by or for the Equal
VerDate Sep<11>2014
16:01 Jun 22, 2023
Jkt 259001
Employment Opportunity Commission
or the Merit Systems Protection Board.
(4) Negotiated grievance proceedings
conducted in accordance with a
collective bargaining agreement.
(5) Requests by Government counsel
representing the United States or a
Federal agency in litigation.
(6) Disclosures to Federal, State, local,
or foreign authorities related to
investigations or other law-enforcement
activities conducted by a Federal lawenforcement officer, agent, or
organization.
The new regulations do not affect in
any way existing laws or SSS programs
governing:
(1) The release of official information
or the presentation of witness testimony
in grand jury proceedings.
(2) Freedom of Information Act
requests submitted pursuant in
accordance with 32 CFR part 1662, even
if the records sought are related to
litigation.
(3) Privacy Act requests submitted
pursuant in accordance with 32 CFR
part 1665, even if the records sought are
related to litigation.
(4) The release of official information
outside of litigation.
The new regulations do not create any
right or benefit (substantive or
procedural) enforceable by law against
the SSS or the United States.
The new regulations define:
Court. A Federal, State, or local court,
tribunal, commission, board, or other
adjudicative body of competent
jurisdiction.
Demand. An order or subpoena by a
court of competent jurisdiction for the
production or release of official
information or for the presentation of
witness testimony by SSS personnel at
deposition or trial.
Disclosure. The release of official
information in litigation or the
presentation of witness testimony by
SSS personnel.
Legal Advisor includes the Selective
Service System (SSS) General Counsel
(GC), and any other SSS legal advisors
designated by the GC.
Litigation. All pretrial (e.g.,
discovery), trial, and post-trial stages of
existing judicial or administrative
actions, hearings, investigations, or
similar proceedings before a civilian
court, whether foreign or domestic.
Litigation request. Any written
request by a party in litigation or the
party’s attorney for the production or
release of official information or for the
presentation of witness testimony by
SSS personnel at deposition, trial, or
similar proceeding.
Official information. All information
of any kind and however stored that is
PO 00000
Frm 00008
Fmt 4702
Sfmt 4702
in the custody and control of the SSS,
relates to information in the custody
and control of the SSS, or was acquired
by SSS personnel due to their official
duties or status.
Personnel.
(1) Civilian employees of the SSS.
(2) Present and former (e.g., retired,
separated) Service members assigned to
the SSS.
(3) Present and former (e.g., retired,
separated) employees of another Federal
agency assigned to, detailed to, or
otherwise affiliated with SSS.
(4) Any individuals who are or were
supervised by an SSS official and who
perform or have performed services for
the SSS through a contractual
arrangement.
(5) Any individual that performs or
has performed services for the SSS as a
volunteer (e.g., (local board, panel,
multicounty, intercounty, district
appeals board members, state resource
volunteers, etc.).
(6) Any individual that performs or
has performed the duties as a member
of the National Appeals Board.
SSS Components. The SSS
Components consist of:
(1) The Office of the Director.
(2) National Headquarters Directorates
and Offices.
(3) Region Offices.
(4) Data Management Center.
(5) the National Appeals Board.
(6) District Appeals Boards.
(7) Local Boards (including panels,
multicounty, and intracounty boards).
(8) All other organizational entities
within the SSS.
The new regulations outline the SSS
policy to make official factual
information, both testimonial and
documentary, reasonably available for
use in Federal courts, State courts,
foreign courts, and other governmental
proceedings unless that information is
classified, privileged, or otherwise
protected from public disclosure. It
makes clear that SSS personnel shall not
provide such official information,
testimony, or documents, submit to
interview, or permit a view or visit,
without the authorization required by
this part. It stresses that SSS personnel
shall not provide, with or without
compensation, opinion or expert
testimony concerning official SSS
information, subjects, personnel, or
activities, except on behalf of the United
States or a party represented by the
Department of Justice, or with the
written special authorization required
by this part. Finally, it provides that
upon a showing by a requester of
exceptional need or unique
circumstances, and that the anticipated
testimony will not be adverse to the
E:\FR\FM\23JNP1.SGM
23JNP1
lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 120 / Friday, June 23, 2023 / Proposed Rules
interests of the SSS or the United States,
the SSS GC may, in their sole discretion,
and pursuant to the guidance contained
in this part, grant such written special
authorization for SSS personnel to
appear and testify as expert or opinion
witnesses at no expense to the United
States.
Parties who submit a litigation request
or demand to the SSS must describe, in
writing and with specificity:
(1) the nature of the official
information or witness testimony
sought, its relevance to the litigation,
and other pertinent details addressing
the factors in § 1660.8.
(2) the litigation request or demand
must show whether the request is
consistent with the policy and rules of
this part.
(3) the litigation request or demand
must include copies of the complaint
and relevant proceedings and be
submitted at least 30 days before the
desired date to the Selective Service
System, General Counsel, 1501 Wilson
Blvd., Suite 800, Arlington, Virginia
22209.
If the litigation request or demand
seeks testimony, the identity of the SSS
employee whose testimony is sought
and a detailed summary about the
relevance of the employee’s testimony
to the underlying legal proceeding;
If the litigation request or demand
seeks documents or other materials, a
description of the requested official
information sought and a detailed
summary about its relevance to the
underlying legal proceeding;
An explanation of the unavailability
of the requested official information or
employee testimony through other
sources; and
An explanation of how each of the
factors set forth in 32 CFR 1660.8
applies to their demand.
The new regulations require that this
information must be submitted at least
30 calendar days before the official
information or employee testimony is
needed and further require the
submission of the above information
even if parties serve a subpoena on the
SSS or a SSS employee. A litigation
request or demand will not be granted
if a party fails to follow the instructions
set forth in the regulations.
SSS personnel who receive a
litigation request or demand are to:
(1) Inform their supervisors about the
litigation request or demand so the
supervisors may inform the SSS GC or
other SSS legal advisor; and
(2) Refrain from providing official
information and/or testimony in
response to the litigation request or
demand.
VerDate Sep<11>2014
16:01 Jun 22, 2023
Jkt 259001
B. Background & Legal Basis for This
Rule
The Housekeeping Statute, 5 U.S.C.
301, authorizes agency heads to
promulgate regulations governing ‘‘the
custody, use, and preservation of its
records, papers, and property.’’
The Supreme Court held in United
States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951), that under such authority,
agency heads may establish procedures
for determining whether to release
official information and allow personnel
testimony sought through a subpoena or
other litigation request. This regulation
sets forth SSS’s procedures, which as
the Supreme Court explained, are useful
and necessary as a matter of internal
administration to prevent possible harm
from unrestricted disclosures in court.
Currently, the SSS does not have Touhy
regulations. This proposed rule creates
new regulations spanning §§ 1660.1
through 1660.11.
C. Expected Impact of the Proposed
Rule
This rule action will not impose any
new costs. Creating SSS Touhy
regulations will clarify and streamline
requests and will produce efficiency
and uniformity to the public’s benefit.
Less attorney time will be spent
searching for SSS request procedures
and complying with its requirements.
After reviewing other agency
regulations, the SSS concluded that
attorneys for third-party litigants will
save considerable time in performing
research, review, and compliance time
per subpoena or litigation request when
referring to the Code of Federal
Regulations for guidance.
For purposes of estimating the cost
savings, the SSS’s subject matter experts
deemed it reasonable to use the mean
hourly wage for lawyers as informed by
the Bureau of Labor and Statistics,
$78.74.1 In addition to these cost
savings, there will be an unquantified
benefit of transparency through access
to official information, while
safeguarding classified, privileged, and
personally identifiable information.
D. Executive Order (E.O.) 12866,
‘‘Regulatory Planning and Review,’’
E.O. 13563, ‘‘Improving Regulation and
Regulatory Review,’’ and Congressional
Review Act (5 U.S.C. 801–08)
E.O.s 12866 and 13563 direct agencies
to assess all costs and benefits of
available regulatory alternatives and, if
1 This
information can be found in the website of
the Bureau of Labor Statistics under National Wage
Data for Lawyers, Occupation Code 23–1011
(available at https://www.bls.gov/oes/current/
oes231011.htm), last updated in May 2019.
PO 00000
Frm 00009
Fmt 4702
Sfmt 4702
41053
regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
economic, environmental, public health
and safety effects, distribute impacts,
and equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. Following the requirements
of these E.O.s, the Office of Management
and Budget has determined that this
proposed rule is not a significant
regulatory action under section 3(f) of
E.O. 12866 nor a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
E. Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601)
SSS certifies that this proposed rule is
not subject to the Regulatory Flexibility
Act, 5 U.S.C. 601, because it would not
have a significant economic impact on
a substantial number of small entities.
Therefore, the Regulatory Flexibility
Act, as amended, does not require SSS
to prepare a regulatory flexibility
analysis.
F. Section 202 of Public Law 104–4,
‘‘Unfunded Mandates Reform Act’’ (2
U.S.C. 1532)
Section 202 of the Unfunded
Mandates Reform Act of 1995, 2 U.S.C.
1532, requires agencies to assess
anticipated costs and benefits before
issuing any rule whose mandates
require the expenditure of $100 million
or more (in 1995 dollars, adjusted
annually for inflation) in any one year.
This proposed rule will not mandate
any requirements for State, local, or
tribal governments, nor will it affect
private sector costs.
G. Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35)
It has been determined that 32 CFR
part 1660 does not impose reporting or
recordkeeping requirements under the
Paperwork Reduction Act.
H. E.O. 13132, ‘‘Federalism’’
E.O. 13132 establishes certain
requirements that an agency must meet
when it promulgates a proposed rule
(and subsequent final rule) that imposes
substantial direct requirement costs on
State and local Governments, preempts
State law, or otherwise has federalism
implications. This proposed rule will
not have a substantial effect on State
and local Governments.
I. E.O. 11623, Delegation of Authority &
Coordination Requirements
In E.O. 11623, the President delegated
to the Director of Selective Service the
authority to prescribe the necessary
E:\FR\FM\23JNP1.SGM
23JNP1
41054
Federal Register / Vol. 88, No. 120 / Friday, June 23, 2023 / Proposed Rules
rules and regulations to carry out the
provisions of the Military Selective
Service Act. In carrying out the
provisions of E.O. 11623, as amended by
E.O. 13286, the Director shall request
the views of the Secretary of Defense,
the Attorney General, the Secretary of
Labor, the Secretary of Health,
Education, and Welfare, the Secretary of
Homeland Security (when the Coast
Guard is serving under the Department
of Homeland Security), the Director of
the Office of Emergency Preparedness,
and the Chairman of the National
Selective Service Appeal Board with
regard to such proposed rule or
regulation, and shall allow not less than
10 days for the submission of such
views before publication of the
proposed rule or regulation. On June 13,
2023, the SSS completed its
coordination requirements, and the
Director certifies that he has requested
the views of the officials required to be
consulted pursuant to subsection (a) of
E.O. 11623, considered those views and
as appropriate incorporated those views
in these regulations, and that none of
them has timely requested that the
matter be referred to the President for
decision.
List of Subjects in 32 CFR Part 1660
Government employees, Organization
and functions (Government agencies).
■ For the reasons discussed in the
preamble, the Selective Service System
proposes to amend 32 CFR chapter XVI
by adding part 1660 to read as follows:
lotter on DSK11XQN23PROD with PROPOSALS1
PART 1660—RELEASE OF OFFICIAL
INFORMATION IN LITIGATION AND
PRESENTATION OF WITNESS
TESTIMONY BY SSS PERSONNEL
(TOUHY REGULATION)
Sec.
1660.1 Purpose.
1660.2 Applicability.
1660.3 Definitions.
1660.4 Policy.
1660.5 Responsibilities—the Selective
Service System (SSS) General Counsel
(GC).
1660.6 Responsibilities—the Selective
Service System Component Heads.
1660.7 Procedures—authorities.
1660.8 Procedures—factors to consider.
1660.9 Procedures—requirements and
determinations.
1660.10 Procedures—fees.
1660.11 Procedures—expert or opinion
testimony.
Authority: 5 U.S.C. 301; 50 U.S.C. 3809; &
E.O. 11623, as amended by E.O. 13286, Feb
28, 2003.
§ 1660.1
Purpose.
This part establishes policy, assigns
responsibilities, and prescribes
procedures for the release of official
VerDate Sep<11>2014
16:01 Jun 22, 2023
Jkt 259001
information in litigation and the
presentation of witness testimony by
Selective Service System (SSS)
personnel pursuant to 5 U.S.C. 301 and
the Supreme Court’s decision in United
States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951).
§ 1660.2
Applicability.
This part—
(a) Applies to all SSS personnel (see
§ 1660.3), in particular, members and
personnel of the Office of the Director,
National Headquarters Directorates and
Offices, Region Offices, Data
Management Center, the National
Appeals Board, District Appeals Boards,
Local Boards (including panels,
multicounty, and intercounty boards)
and all other organizational entities
within the SSS (referred to collectively
in this part as the ‘‘SSS Components’’).
(b) Is intended only to provide
guidance for the internal operations of
the SSS, without displacing the
responsibility of the Department of
Justice to represent the United States in
litigation.
(c) Does not preclude official
comments on matters in litigation.
(d) Does not apply to the release of
official information or the presentation
of witness testimony in connection
with:
(1) Administrative proceedings or
investigations conducted by or for a SSS
Component.
(2) Security-clearance adjudicative
proceedings.
(3) Administrative proceedings
conducted by or for the Equal
Employment Opportunity Commission
or the Merit Systems Protection Board.
(4) Negotiated grievance proceedings
conducted in accordance with a
collective bargaining agreement.
(5) Requests by Government counsel
representing the United States or a
Federal agency in litigation.
(6) Disclosures to Federal, State, local,
or foreign authorities related to
investigations or other law-enforcement
activities.
(e) Does not affect in any way existing
laws or SSS programs governing:
(1) The release of official information
or the presentation of witness testimony
in grand jury proceedings.
(2) Freedom of Information Act
requests submitted pursuant to 32 CFR
part 1662, even if the records sought are
related to litigation.
(3) Privacy Act requests submitted
pursuant to 32 CFR part 1665, even if
the records sought are related to
litigation.
(4) The release of official information
outside of litigation.
(f) Does not create any right or benefit
(substantive or procedural) enforceable
PO 00000
Frm 00010
Fmt 4702
Sfmt 4702
at law against the SSS or the United
States.
§ 1660.3
Definitions.
These terms and their definitions are
for the purpose of this part.
Court. A Federal, State, or local court,
tribunal, commission, board, or other
adjudicative body of competent
jurisdiction.
Demand. An order or subpoena by a
court of competent jurisdiction for the
production or release of official
information or for the presentation of
witness testimony by SSS personnel at
deposition or trial.
Disclosure. The release of official
information in litigation or the
presentation of witness testimony by
SSS personnel.
Legal advisor means:
(1) The General Counsel of the SSS
(SSS GC).
(2) Any Legal Advisor Designated by
the SSS GC.
Litigation. All pretrial (e.g.,
discovery), trial, and post-trial stages of
existing judicial or administrative
actions, hearings, investigations, or
similar proceedings before a court,
whether foreign or domestic.
Litigation request. Any written
request by a party in litigation or the
party’s attorney for the production or
release of official information or for the
presentation of witness testimony by
SSS personnel at deposition, trial, or
similar proceeding.
Official information. All information
of any kind and however stored that is
in the custody and control of the SSS,
relates to information in the custody
and control of the SSS, or was acquired
by SSS personnel due to their official
duties or status.
Personnel means:
(1) Employees of the SSS.
(2) Present and former (e.g., retired,
separated) Service members assigned to,
detailed to, or otherwise affiliated with
the SSS.
(3) Present and former (e.g., retired,
separated) employees of another Federal
agency assigned to, detailed to, or
otherwise affiliated with the SSS.
(4) Any individuals who are or were
supervised by an SSS official and who
perform or have performed services for
the SSS through a contractual
arrangement.
(5) Any individuals who perform or
have performed services for the SSS as
a volunteer board member (local, panel,
multicounty, intracounty, district
appeals).
(6) Members of the National Appeals
Board.
SSS Components. The SSS
Components consist of:
E:\FR\FM\23JNP1.SGM
23JNP1
Federal Register / Vol. 88, No. 120 / Friday, June 23, 2023 / Proposed Rules
(1) The Office of the Director.
(2) National Headquarters Directorates
and Offices.
(3) Region Offices.
(4) Data Management Center.
(5) the National Appeals Board.
(6) District Appeals Boards.
(7) Local Boards (including panels,
multicounty, and intercounty boards).
(8) All other organizational entities
within the SSS.
§ 1660.4
Policy.
lotter on DSK11XQN23PROD with PROPOSALS1
(a) It is the policy of the SSS to make
official factual information, both
testimonial and documentary,
reasonably available for use in Federal
courts, State courts, foreign courts, and
other governmental proceedings unless
that information is classified, privileged,
or otherwise protected from public
disclosure.
(b) SSS personnel, as defined in
§ 1660.3, however, shall not provide
such official information, testimony, or
documents, submit to interview, or
permit a view or visit, without the
authorization required by this part.
(c) SSS personnel shall not provide,
with or without compensation, opinion
or expert testimony concerning official
SSS information, subjects, personnel, or
activities, except on behalf of the United
States or a party represented by the
Department of Justice, or with the
written special authorization required
by this part.
(d) Paragraphs (b) and (c) of this
section constitute a regulatory general
order, applicable to all SSS personnel
individually, and need no further
implementation. A violation of those
provisions is the basis for appropriate
administrative procedures with respect
to civilian employees. Moreover,
violations of this instruction by SSS
personnel may, under certain
circumstances, be actionable under 18
U.S.C. 207.
(e) Upon a showing by a requester of
exceptional need or unique
circumstances, and that the anticipated
testimony will not be adverse to the
interests of the SSS or the United States,
the SSS GC may, in their sole discretion,
and pursuant to the guidance contained
in this part, grant such written special
authorization for SSS personnel to
appear and testify as expert or opinion
witnesses at no expense to the United
States.
§ 1660.5 Responsibilities—Selective
Service System (SSS) General Counsel
(GC).
The SSS GC has overall responsibility
for the policy in this part, oversees the
implementation of its procedures
throughout the SSS, and provides
supplemental guidance as appropriate.
VerDate Sep<11>2014
16:01 Jun 22, 2023
Jkt 259001
§ 1660.6 Responsibilities—SSS
Component Heads.
The SSS Component heads
implement the policy and procedures in
this part and, through the SSS GC or
other SSS legal advisor, provide
guidance for their respective
components.
§ 1660.7
Procedures—authorities.
(a) In response to a litigation request
or demand, and after any required
coordination with the Department of
Justice, the SSS GC and other SSS legal
advisor (see § 1660.3) are authorized to:
(1) Determine whether the respective
SSS Components may release official
information originated by or in the
custody of such components.
(2) Determine whether personnel
assigned to, detailed to, or affiliated
with the respective SSS Components
may be contacted, interviewed, or used
as witnesses concerning official
information or, in exceptional
circumstances, as expert witnesses.
(3) Impose conditions or limitations
on disclosures approved pursuant to
this paragraph (a) (e.g., approve the
release of official information only to a
Federal judge for in-camera review).
(4) Assert claims of privilege or
protection before any court.
(b) The SSS GC may assume primary
responsibility for responding to any
litigation request or demand.
§ 1660.8
Procedures—factors to consider.
In making a determination pursuant
to § 1660.7(a), the SSS GC and other SSS
legal advisor will consider whether:
(a) The litigation request or demand is
overbroad, unduly burdensome, or
otherwise inappropriate under
applicable law or court rules, or this
part.
(b) The disclosure would be improper
(e.g., the information is irrelevant,
cumulative, or disproportional to the
needs of the case) under the rules of
procedure governing the litigation from
which the request or demand arose.
(c) The official information or witness
testimony is privileged or otherwise
protected from disclosure under
applicable law.
(d) The disclosure would violate a
statute, Executive order, regulation, or
policy.
(e) The disclosure would reveal:
(1) Information properly classified
pursuant to Chapters 21, 22,6 31, 33,
and 35 of title 44, United States Code;
Sections 102, 105, 552,7 and 552a8 of
title 5, United States Code; Executive
Order 12968, ‘‘Access to Classified
Information,’’ August 2, 1995, as
amended; Intelligence Community
Directive 703, ‘‘Protection of Classified
PO 00000
Frm 00011
Fmt 4702
Sfmt 4702
41055
National intelligence, Including
Sensitive Compartmental Information
(SCI),’’ June 21 20132; Executive Order
12958, ‘‘Classified National Security
Information,’’ April 17, 1995, as
amended; Presidential Memorandum,
‘‘Implementation of the Executive
Order, ‘Classified National Security
Information,’ ’’ December 29, 2009;
(2) Controlled Unclassified
Information pursuant to Executive
Order 13556, ‘‘Controlled Unclassified
Information,’’ November 4, 2010, as
amended; 32 CFR part 2002.
(3) Technical data withheld pursuant
to 32 CFR part 250.
(4) Information protected by the
Privacy Act, which may not be
disclosed in the absence of written
consent, a routine use, or other
authority listed in 5 U.S.C. 552a(b).
(5) Information otherwise exempt
from unrestricted disclosure.
(f) The disclosure would:
(1) Interfere with an ongoing law
enforcement proceeding.
(2) Compromise a constitutional right
of another.
(3) Expose an intelligence source or
confidential informant.
(4) Divulge a trade secret or similar
confidential information.
(5) Be otherwise inappropriate.
§ 1660.9 Procedures—requirements and
determinations.
(a) A litigation request or demand
must describe, in writing and with
specificity, the nature of the official
information or witness testimony
sought, its relevance to the litigation,
and other pertinent details addressing
the factors in § 1660.8.
(b) A litigation request or demand
must be submitted at least 30 days
before the desired date to the Selective
Service System, General Counsel, 1501
Wilson Blvd., Suite 800, Arlington,
Virginia 22209.
(c) Personnel and former personnel
(e.g., retired employees and Reserve
Service Members, past volunteers) who
receive a litigation request or demand
must notify the SSS GC or their SSS
legal advisor immediately.
(d) If another Federal agency
originated the responsive information or
otherwise has the primary equity with
respect to that information, the SSS GC
will:
(1) Transfer the litigation request or
demand (or the appropriate portions) to
such other agency for action.
(2) Inform the requesting party or
issuing court.
(e) If the litigation request or demand
requires a response before a
determination can be made, the SSS GC
or other SSS legal advisor will inform
E:\FR\FM\23JNP1.SGM
23JNP1
41056
Federal Register / Vol. 88, No. 120 / Friday, June 23, 2023 / Proposed Rules
the requesting party or the issuing court
(through the Department of Justice) that
the request or demand is still under
consideration. The SSS GC or other SSS
legal advisor also may seek a stay from
the court in question until a final
determination is made.
(f) Upon making a final determination
pursuant to § 1660.7(a), the SSS GC or
other SSS legal advisor will inform the
requesting party or issuing court.
(g) If the SSS GC or other SSS legal
advisor approves the release of official
information or the presentation of
witness testimony, personnel will limit
the disclosure to those matters approved
by the SSS GC or other SSS legal
advisor. Personnel may not release,
produce, comment on, or testify about
any official information without the
prior written approval of the SSS GC or
other SSS legal advisor.
(h) If a court orders a disclosure that
the SSS GC or other SSS legal advisor
previously disapproved or has yet to
approve, personnel must respectfully
decline to comply with the court’s order
unless the SSS GC or other SSS legal
advisor directs otherwise.
§ 1660.10
Procedures—fees.
Parties seeking official information by
litigation request or demand may be
charged reasonable fees to reimburse
expenses associated with the
Government’s response. These
reimbursable expenses may include the
cost of:
(a) Materials and equipment used to
search for, copy, and produce
responsive information.
(b) Personnel time spent processing
and responding to the request or
demand.
(c) Attorney time spent assisting with
the Government’s response, to include
reviewing the request or demand and
the potentially responsive information.
lotter on DSK11XQN23PROD with PROPOSALS1
§ 1660.11 Procedures—expert or opinion
testimony.
In any legal proceeding before the SSS
or in which the United States (including
any Federal agency or officer of the
United States) is a party:
(a) The SSS GC shall arrange for an
employee to testify as a witness for the
United States whenever the attorney
representing the United States requests
it.
(b) SSS personnel may testify for the
United States both as to facts within
their personal knowledge and as an
expert or opinion witness. Except as
provided in paragraph (c) of this
section, SSS personnel may not testify
as an expert or opinion witness, with
regard to any matter arising out of their
official duties or the functions of the
VerDate Sep<11>2014
16:01 Jun 22, 2023
Jkt 259001
SSS, for any party other than the United
States in any legal proceeding in which
the United States is a party. SSS
personnel who receive a demand to
testify on behalf of a party other than
the United States may testify as to facts
within the employee’s personal
knowledge, provided that the testimony
be subject to the prior written approval
of the SSS GC or other SSS legal advisor
and to the Federal Rules of Civil
Procedure and any applicable claims of
privilege, the anticipated testimony is
not adverse to the interests of the SSS
or the United States Government, and is
presented at no cost to the Government.
(c) SSS personnel may testify as an
expert or opinion witness on behalf of
the SSS or in any legal proceeding
conducted by the SSS or the United
States.
Daniel A. Lauretano, Sr.,
Selective Service System General Counsel &
Federal Register Liaison Officer.
[FR Doc. 2023–13374 Filed 6–22–23; 8:45 am]
BILLING CODE 8015–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R01–OAR–2023–0297; FRL–11046–
01–R1]
Air Plan Approval; Rhode Island;
Organic Solvent Cleaning Regulation
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve a
State Implementation Plan (SIP)
revision submitted by the State of Rhode
Island. This SIP amendment consists of
revisions to the Rhode Island Air
Pollution Control Regulation No. 36,
currently codified in Title 250
Department of Environmental
Management, Chapter 120 Air
Resources, Subchapter 05 Air Pollution
Control, Part 36 Control of Emissions
from Organic Solvent Cleaning (Part 36).
The proposed SIP revisions include
minor regulatory changes that were
necessary to provide consistency with
the federal regulations for National
Emissions Standards for Hazardous Air
Pollutants (NESHAP) for Halogenated
Solvent Cleaning. This action is being
taken under the Clean Air Act.
DATES: Written comments must be
received on or before July 24, 2023.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R01–
OAR–2023–0297 at https://
SUMMARY:
PO 00000
Frm 00012
Fmt 4702
Sfmt 4702
www.regulations.gov, or via email to
kosin.michele@epa.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. For either manner of
submission, the EPA may publish any
comment received to its public docket.
Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
For the full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets. Publicly
available docket materials are available
at https://www.regulations.gov or at the
U.S. Environmental Protection Agency,
EPA Region 1 Regional Office, Air and
Radiation Division, 5 Post Office
Square—Suite 100, Boston, MA. EPA
requests that if at all possible, you
contact the contact listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 a.m. to
4:30 p.m., excluding legal holidays and
facility closures due to COVID–19.
FOR FURTHER INFORMATION CONTACT:
Michele Kosin, Physical Scientist, Air
Quality Branch, Air & Radiation
Division (Mail Code 5–MI), U.S.
Environmental Protection Agency,
Region 1, 5 Post Office Square, Suite
100, Boston, Massachusetts 02109–3912;
(617) 918–1175; kosin.michele@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
Table of Contents
I. Background and Purpose
II. Description and Review of Submittals
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
E:\FR\FM\23JNP1.SGM
23JNP1
]]>Agencies
[Federal Register Volume 88, Number 120 (Friday, June 23, 2023)]
[Proposed Rules]
[Pages 41051-41056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13374]
=======================================================================
-----------------------------------------------------------------------
SELECTIVE SERVICE SYSTEM
32 CFR Part 1660
RIN 3240-AA02
Release of Official Information in Litigation and Presentation of
Witness Testimony by Selective Service System (SSS) Personnel (Touhy
Regulation)
AGENCY: United States Selective Service System.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Selective Service System (SSS) is publishing new
regulations titled, ``Release of official information in litigation and
presentation of witnesses testimony by Selective Service System (SSS)
personnel'' (referred to as Touhy regulations). These new regulations
will ensure consistent processing of Touhy requests; clarify the
responsibilities of all parties in the Touhy process; and provide
additional information about criteria that SSS and its Components
should consider in the Touhy process.
DATES: Comments must be received 60 days from publication date.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulatory Information Number (RIN) number and title by email to
[email protected], or by mail to:
[[Page 41052]]
Selective Service System, General Counsel, 1515 Wilson Boulevard, Suite
500, Arlington, Virginia 22209-2425.
Instructions: All submissions received must include the agency name
and docket number or RIN for this Federal Register document. The
general policy for comments and other submissions from members of the
public is to make these submissions available for public viewing on the
internet at https://www.regulations.gov as they are received without
change, including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Mr. Daniel A. Lauretano, Sr., General
Counsel, 703-605-4012, [email protected].
SUPPLEMENTARY INFORMATION:
A. Summary of New Regulatory Provisions and Their Impact
The SSS is creating its Touhy regulations to: (1) Promote
consistent processing of Touhy requests among the SSS and SSS
Components; (2) clarify the responsibilities of all parties in the
Touhy process; and (3) provide additional information about criteria
that SSS should consider in the Touhy process. The new regulations set
forth the procedures to be followed with respect to a demand seeking
official information or employee testimony relating to official
information for use in a legal proceeding. The new regulations also set
forth certain definitions. The new regulations apply to all SSS
personnel (see Sec. 1660.3), in particular, members and personnel of
the Office of the Director, National Headquarters Directorates and
Offices, Region Offices, the Data Management Center, the National
Appeals Board, District Appeals Boards, Local Boards (including panels,
multicounty, and intracounty boards), and all other organizational
entities within the SSS (referred to collectively in this part as the
``SSS Components'').
The new regulations are intended only to provide guidance for the
internal operations of the SSS, without displacing the responsibility
of the Department of Justice to represent the United States in
litigation. The new regulations do not apply to the release of official
information or the presentation of witness testimony in connection
with:
(1) Administrative proceedings or investigations conducted by the
SSS.
(2) Security-clearance adjudicative proceedings.
(3) Administrative proceedings conducted by or for the Equal
Employment Opportunity Commission or the Merit Systems Protection
Board.
(4) Negotiated grievance proceedings conducted in accordance with a
collective bargaining agreement.
(5) Requests by Government counsel representing the United States
or a Federal agency in litigation.
(6) Disclosures to Federal, State, local, or foreign authorities
related to investigations or other law-enforcement activities conducted
by a Federal law-enforcement officer, agent, or organization.
The new regulations do not affect in any way existing laws or SSS
programs governing:
(1) The release of official information or the presentation of
witness testimony in grand jury proceedings.
(2) Freedom of Information Act requests submitted pursuant in
accordance with 32 CFR part 1662, even if the records sought are
related to litigation.
(3) Privacy Act requests submitted pursuant in accordance with 32
CFR part 1665, even if the records sought are related to litigation.
(4) The release of official information outside of litigation.
The new regulations do not create any right or benefit (substantive
or procedural) enforceable by law against the SSS or the United States.
The new regulations define:
Court. A Federal, State, or local court, tribunal, commission,
board, or other adjudicative body of competent jurisdiction.
Demand. An order or subpoena by a court of competent jurisdiction
for the production or release of official information or for the
presentation of witness testimony by SSS personnel at deposition or
trial.
Disclosure. The release of official information in litigation or
the presentation of witness testimony by SSS personnel.
Legal Advisor includes the Selective Service System (SSS) General
Counsel (GC), and any other SSS legal advisors designated by the GC.
Litigation. All pretrial (e.g., discovery), trial, and post-trial
stages of existing judicial or administrative actions, hearings,
investigations, or similar proceedings before a civilian court, whether
foreign or domestic.
Litigation request. Any written request by a party in litigation or
the party's attorney for the production or release of official
information or for the presentation of witness testimony by SSS
personnel at deposition, trial, or similar proceeding.
Official information. All information of any kind and however
stored that is in the custody and control of the SSS, relates to
information in the custody and control of the SSS, or was acquired by
SSS personnel due to their official duties or status.
Personnel.
(1) Civilian employees of the SSS.
(2) Present and former (e.g., retired, separated) Service members
assigned to the SSS.
(3) Present and former (e.g., retired, separated) employees of
another Federal agency assigned to, detailed to, or otherwise
affiliated with SSS.
(4) Any individuals who are or were supervised by an SSS official
and who perform or have performed services for the SSS through a
contractual arrangement.
(5) Any individual that performs or has performed services for the
SSS as a volunteer (e.g., (local board, panel, multicounty,
intercounty, district appeals board members, state resource volunteers,
etc.).
(6) Any individual that performs or has performed the duties as a
member of the National Appeals Board.
SSS Components. The SSS Components consist of:
(1) The Office of the Director.
(2) National Headquarters Directorates and Offices.
(3) Region Offices.
(4) Data Management Center.
(5) the National Appeals Board.
(6) District Appeals Boards.
(7) Local Boards (including panels, multicounty, and intracounty
boards).
(8) All other organizational entities within the SSS.
The new regulations outline the SSS policy to make official factual
information, both testimonial and documentary, reasonably available for
use in Federal courts, State courts, foreign courts, and other
governmental proceedings unless that information is classified,
privileged, or otherwise protected from public disclosure. It makes
clear that SSS personnel shall not provide such official information,
testimony, or documents, submit to interview, or permit a view or
visit, without the authorization required by this part. It stresses
that SSS personnel shall not provide, with or without compensation,
opinion or expert testimony concerning official SSS information,
subjects, personnel, or activities, except on behalf of the United
States or a party represented by the Department of Justice, or with the
written special authorization required by this part. Finally, it
provides that upon a showing by a requester of exceptional need or
unique circumstances, and that the anticipated testimony will not be
adverse to the
[[Page 41053]]
interests of the SSS or the United States, the SSS GC may, in their
sole discretion, and pursuant to the guidance contained in this part,
grant such written special authorization for SSS personnel to appear
and testify as expert or opinion witnesses at no expense to the United
States.
Parties who submit a litigation request or demand to the SSS must
describe, in writing and with specificity:
(1) the nature of the official information or witness testimony
sought, its relevance to the litigation, and other pertinent details
addressing the factors in Sec. 1660.8.
(2) the litigation request or demand must show whether the request
is consistent with the policy and rules of this part.
(3) the litigation request or demand must include copies of the
complaint and relevant proceedings and be submitted at least 30 days
before the desired date to the Selective Service System, General
Counsel, 1501 Wilson Blvd., Suite 800, Arlington, Virginia 22209.
If the litigation request or demand seeks testimony, the identity
of the SSS employee whose testimony is sought and a detailed summary
about the relevance of the employee's testimony to the underlying legal
proceeding;
If the litigation request or demand seeks documents or other
materials, a description of the requested official information sought
and a detailed summary about its relevance to the underlying legal
proceeding;
An explanation of the unavailability of the requested official
information or employee testimony through other sources; and
An explanation of how each of the factors set forth in 32 CFR
1660.8 applies to their demand.
The new regulations require that this information must be submitted
at least 30 calendar days before the official information or employee
testimony is needed and further require the submission of the above
information even if parties serve a subpoena on the SSS or a SSS
employee. A litigation request or demand will not be granted if a party
fails to follow the instructions set forth in the regulations.
SSS personnel who receive a litigation request or demand are to:
(1) Inform their supervisors about the litigation request or demand
so the supervisors may inform the SSS GC or other SSS legal advisor;
and
(2) Refrain from providing official information and/or testimony in
response to the litigation request or demand.
B. Background & Legal Basis for This Rule
The Housekeeping Statute, 5 U.S.C. 301, authorizes agency heads to
promulgate regulations governing ``the custody, use, and preservation
of its records, papers, and property.''
The Supreme Court held in United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951), that under such authority, agency heads may establish
procedures for determining whether to release official information and
allow personnel testimony sought through a subpoena or other litigation
request. This regulation sets forth SSS's procedures, which as the
Supreme Court explained, are useful and necessary as a matter of
internal administration to prevent possible harm from unrestricted
disclosures in court. Currently, the SSS does not have Touhy
regulations. This proposed rule creates new regulations spanning
Sec. Sec. 1660.1 through 1660.11.
C. Expected Impact of the Proposed Rule
This rule action will not impose any new costs. Creating SSS Touhy
regulations will clarify and streamline requests and will produce
efficiency and uniformity to the public's benefit. Less attorney time
will be spent searching for SSS request procedures and complying with
its requirements. After reviewing other agency regulations, the SSS
concluded that attorneys for third-party litigants will save
considerable time in performing research, review, and compliance time
per subpoena or litigation request when referring to the Code of
Federal Regulations for guidance.
For purposes of estimating the cost savings, the SSS's subject
matter experts deemed it reasonable to use the mean hourly wage for
lawyers as informed by the Bureau of Labor and Statistics, $78.74.\1\
In addition to these cost savings, there will be an unquantified
benefit of transparency through access to official information, while
safeguarding classified, privileged, and personally identifiable
information.
---------------------------------------------------------------------------
\1\ This information can be found in the website of the Bureau
of Labor Statistics under National Wage Data for Lawyers, Occupation
Code 23-1011 (available at https://www.bls.gov/oes/current/oes231011.htm), last updated in May 2019.
---------------------------------------------------------------------------
D. Executive Order (E.O.) 12866, ``Regulatory Planning and Review,''
E.O. 13563, ``Improving Regulation and Regulatory Review,'' and
Congressional Review Act (5 U.S.C. 801-08)
E.O.s 12866 and 13563 direct agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distribute impacts, and equity). E.O. 13563 emphasizes the
importance of quantifying both costs and benefits, of reducing costs,
of harmonizing rules, and of promoting flexibility. Following the
requirements of these E.O.s, the Office of Management and Budget has
determined that this proposed rule is not a significant regulatory
action under section 3(f) of E.O. 12866 nor a ``major rule'' as defined
by 5 U.S.C. 804(2).
E. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
SSS certifies that this proposed rule is not subject to the
Regulatory Flexibility Act, 5 U.S.C. 601, because it would not have a
significant economic impact on a substantial number of small entities.
Therefore, the Regulatory Flexibility Act, as amended, does not require
SSS to prepare a regulatory flexibility analysis.
F. Section 202 of Public Law 104-4, ``Unfunded Mandates Reform Act'' (2
U.S.C. 1532)
Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1532, requires agencies to assess anticipated costs and benefits before
issuing any rule whose mandates require the expenditure of $100 million
or more (in 1995 dollars, adjusted annually for inflation) in any one
year. This proposed rule will not mandate any requirements for State,
local, or tribal governments, nor will it affect private sector costs.
G. Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
35)
It has been determined that 32 CFR part 1660 does not impose
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
H. E.O. 13132, ``Federalism''
E.O. 13132 establishes certain requirements that an agency must
meet when it promulgates a proposed rule (and subsequent final rule)
that imposes substantial direct requirement costs on State and local
Governments, preempts State law, or otherwise has federalism
implications. This proposed rule will not have a substantial effect on
State and local Governments.
I. E.O. 11623, Delegation of Authority & Coordination Requirements
In E.O. 11623, the President delegated to the Director of Selective
Service the authority to prescribe the necessary
[[Page 41054]]
rules and regulations to carry out the provisions of the Military
Selective Service Act. In carrying out the provisions of E.O. 11623, as
amended by E.O. 13286, the Director shall request the views of the
Secretary of Defense, the Attorney General, the Secretary of Labor, the
Secretary of Health, Education, and Welfare, the Secretary of Homeland
Security (when the Coast Guard is serving under the Department of
Homeland Security), the Director of the Office of Emergency
Preparedness, and the Chairman of the National Selective Service Appeal
Board with regard to such proposed rule or regulation, and shall allow
not less than 10 days for the submission of such views before
publication of the proposed rule or regulation. On June 13, 2023, the
SSS completed its coordination requirements, and the Director certifies
that he has requested the views of the officials required to be
consulted pursuant to subsection (a) of E.O. 11623, considered those
views and as appropriate incorporated those views in these regulations,
and that none of them has timely requested that the matter be referred
to the President for decision.
List of Subjects in 32 CFR Part 1660
Government employees, Organization and functions (Government
agencies).
0
For the reasons discussed in the preamble, the Selective Service System
proposes to amend 32 CFR chapter XVI by adding part 1660 to read as
follows:
PART 1660--RELEASE OF OFFICIAL INFORMATION IN LITIGATION AND
PRESENTATION OF WITNESS TESTIMONY BY SSS PERSONNEL (TOUHY
REGULATION)
Sec.
1660.1 Purpose.
1660.2 Applicability.
1660.3 Definitions.
1660.4 Policy.
1660.5 Responsibilities--the Selective Service System (SSS) General
Counsel (GC).
1660.6 Responsibilities--the Selective Service System Component
Heads.
1660.7 Procedures--authorities.
1660.8 Procedures--factors to consider.
1660.9 Procedures--requirements and determinations.
1660.10 Procedures--fees.
1660.11 Procedures--expert or opinion testimony.
Authority: 5 U.S.C. 301; 50 U.S.C. 3809; & E.O. 11623, as
amended by E.O. 13286, Feb 28, 2003.
Sec. 1660.1 Purpose.
This part establishes policy, assigns responsibilities, and
prescribes procedures for the release of official information in
litigation and the presentation of witness testimony by Selective
Service System (SSS) personnel pursuant to 5 U.S.C. 301 and the Supreme
Court's decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
Sec. 1660.2 Applicability.
This part--
(a) Applies to all SSS personnel (see Sec. 1660.3), in particular,
members and personnel of the Office of the Director, National
Headquarters Directorates and Offices, Region Offices, Data Management
Center, the National Appeals Board, District Appeals Boards, Local
Boards (including panels, multicounty, and intercounty boards) and all
other organizational entities within the SSS (referred to collectively
in this part as the ``SSS Components'').
(b) Is intended only to provide guidance for the internal
operations of the SSS, without displacing the responsibility of the
Department of Justice to represent the United States in litigation.
(c) Does not preclude official comments on matters in litigation.
(d) Does not apply to the release of official information or the
presentation of witness testimony in connection with:
(1) Administrative proceedings or investigations conducted by or
for a SSS Component.
(2) Security-clearance adjudicative proceedings.
(3) Administrative proceedings conducted by or for the Equal
Employment Opportunity Commission or the Merit Systems Protection
Board.
(4) Negotiated grievance proceedings conducted in accordance with a
collective bargaining agreement.
(5) Requests by Government counsel representing the United States
or a Federal agency in litigation.
(6) Disclosures to Federal, State, local, or foreign authorities
related to investigations or other law-enforcement activities.
(e) Does not affect in any way existing laws or SSS programs
governing:
(1) The release of official information or the presentation of
witness testimony in grand jury proceedings.
(2) Freedom of Information Act requests submitted pursuant to 32
CFR part 1662, even if the records sought are related to litigation.
(3) Privacy Act requests submitted pursuant to 32 CFR part 1665,
even if the records sought are related to litigation.
(4) The release of official information outside of litigation.
(f) Does not create any right or benefit (substantive or
procedural) enforceable at law against the SSS or the United States.
Sec. 1660.3 Definitions.
These terms and their definitions are for the purpose of this part.
Court. A Federal, State, or local court, tribunal, commission,
board, or other adjudicative body of competent jurisdiction.
Demand. An order or subpoena by a court of competent jurisdiction
for the production or release of official information or for the
presentation of witness testimony by SSS personnel at deposition or
trial.
Disclosure. The release of official information in litigation or
the presentation of witness testimony by SSS personnel.
Legal advisor means:
(1) The General Counsel of the SSS (SSS GC).
(2) Any Legal Advisor Designated by the SSS GC.
Litigation. All pretrial (e.g., discovery), trial, and post-trial
stages of existing judicial or administrative actions, hearings,
investigations, or similar proceedings before a court, whether foreign
or domestic.
Litigation request. Any written request by a party in litigation or
the party's attorney for the production or release of official
information or for the presentation of witness testimony by SSS
personnel at deposition, trial, or similar proceeding.
Official information. All information of any kind and however
stored that is in the custody and control of the SSS, relates to
information in the custody and control of the SSS, or was acquired by
SSS personnel due to their official duties or status.
Personnel means:
(1) Employees of the SSS.
(2) Present and former (e.g., retired, separated) Service members
assigned to, detailed to, or otherwise affiliated with the SSS.
(3) Present and former (e.g., retired, separated) employees of
another Federal agency assigned to, detailed to, or otherwise
affiliated with the SSS.
(4) Any individuals who are or were supervised by an SSS official
and who perform or have performed services for the SSS through a
contractual arrangement.
(5) Any individuals who perform or have performed services for the
SSS as a volunteer board member (local, panel, multicounty,
intracounty, district appeals).
(6) Members of the National Appeals Board.
SSS Components. The SSS Components consist of:
[[Page 41055]]
(1) The Office of the Director.
(2) National Headquarters Directorates and Offices.
(3) Region Offices.
(4) Data Management Center.
(5) the National Appeals Board.
(6) District Appeals Boards.
(7) Local Boards (including panels, multicounty, and intercounty
boards).
(8) All other organizational entities within the SSS.
Sec. 1660.4 Policy.
(a) It is the policy of the SSS to make official factual
information, both testimonial and documentary, reasonably available for
use in Federal courts, State courts, foreign courts, and other
governmental proceedings unless that information is classified,
privileged, or otherwise protected from public disclosure.
(b) SSS personnel, as defined in Sec. 1660.3, however, shall not
provide such official information, testimony, or documents, submit to
interview, or permit a view or visit, without the authorization
required by this part.
(c) SSS personnel shall not provide, with or without compensation,
opinion or expert testimony concerning official SSS information,
subjects, personnel, or activities, except on behalf of the United
States or a party represented by the Department of Justice, or with the
written special authorization required by this part.
(d) Paragraphs (b) and (c) of this section constitute a regulatory
general order, applicable to all SSS personnel individually, and need
no further implementation. A violation of those provisions is the basis
for appropriate administrative procedures with respect to civilian
employees. Moreover, violations of this instruction by SSS personnel
may, under certain circumstances, be actionable under 18 U.S.C. 207.
(e) Upon a showing by a requester of exceptional need or unique
circumstances, and that the anticipated testimony will not be adverse
to the interests of the SSS or the United States, the SSS GC may, in
their sole discretion, and pursuant to the guidance contained in this
part, grant such written special authorization for SSS personnel to
appear and testify as expert or opinion witnesses at no expense to the
United States.
Sec. 1660.5 Responsibilities--Selective Service System (SSS) General
Counsel (GC).
The SSS GC has overall responsibility for the policy in this part,
oversees the implementation of its procedures throughout the SSS, and
provides supplemental guidance as appropriate.
Sec. 1660.6 Responsibilities--SSS Component Heads.
The SSS Component heads implement the policy and procedures in this
part and, through the SSS GC or other SSS legal advisor, provide
guidance for their respective components.
Sec. 1660.7 Procedures--authorities.
(a) In response to a litigation request or demand, and after any
required coordination with the Department of Justice, the SSS GC and
other SSS legal advisor (see Sec. 1660.3) are authorized to:
(1) Determine whether the respective SSS Components may release
official information originated by or in the custody of such
components.
(2) Determine whether personnel assigned to, detailed to, or
affiliated with the respective SSS Components may be contacted,
interviewed, or used as witnesses concerning official information or,
in exceptional circumstances, as expert witnesses.
(3) Impose conditions or limitations on disclosures approved
pursuant to this paragraph (a) (e.g., approve the release of official
information only to a Federal judge for in-camera review).
(4) Assert claims of privilege or protection before any court.
(b) The SSS GC may assume primary responsibility for responding to
any litigation request or demand.
Sec. 1660.8 Procedures--factors to consider.
In making a determination pursuant to Sec. 1660.7(a), the SSS GC
and other SSS legal advisor will consider whether:
(a) The litigation request or demand is overbroad, unduly
burdensome, or otherwise inappropriate under applicable law or court
rules, or this part.
(b) The disclosure would be improper (e.g., the information is
irrelevant, cumulative, or disproportional to the needs of the case)
under the rules of procedure governing the litigation from which the
request or demand arose.
(c) The official information or witness testimony is privileged or
otherwise protected from disclosure under applicable law.
(d) The disclosure would violate a statute, Executive order,
regulation, or policy.
(e) The disclosure would reveal:
(1) Information properly classified pursuant to Chapters 21, 22,6
31, 33, and 35 of title 44, United States Code; Sections 102, 105,
552,7 and 552a8 of title 5, United States Code; Executive Order 12968,
``Access to Classified Information,'' August 2, 1995, as amended;
Intelligence Community Directive 703, ``Protection of Classified
National intelligence, Including Sensitive Compartmental Information
(SCI),'' June 21 20132; Executive Order 12958, ``Classified National
Security Information,'' April 17, 1995, as amended; Presidential
Memorandum, ``Implementation of the Executive Order, `Classified
National Security Information,' '' December 29, 2009;
(2) Controlled Unclassified Information pursuant to Executive Order
13556, ``Controlled Unclassified Information,'' November 4, 2010, as
amended; 32 CFR part 2002.
(3) Technical data withheld pursuant to 32 CFR part 250.
(4) Information protected by the Privacy Act, which may not be
disclosed in the absence of written consent, a routine use, or other
authority listed in 5 U.S.C. 552a(b).
(5) Information otherwise exempt from unrestricted disclosure.
(f) The disclosure would:
(1) Interfere with an ongoing law enforcement proceeding.
(2) Compromise a constitutional right of another.
(3) Expose an intelligence source or confidential informant.
(4) Divulge a trade secret or similar confidential information.
(5) Be otherwise inappropriate.
Sec. 1660.9 Procedures--requirements and determinations.
(a) A litigation request or demand must describe, in writing and
with specificity, the nature of the official information or witness
testimony sought, its relevance to the litigation, and other pertinent
details addressing the factors in Sec. 1660.8.
(b) A litigation request or demand must be submitted at least 30
days before the desired date to the Selective Service System, General
Counsel, 1501 Wilson Blvd., Suite 800, Arlington, Virginia 22209.
(c) Personnel and former personnel (e.g., retired employees and
Reserve Service Members, past volunteers) who receive a litigation
request or demand must notify the SSS GC or their SSS legal advisor
immediately.
(d) If another Federal agency originated the responsive information
or otherwise has the primary equity with respect to that information,
the SSS GC will:
(1) Transfer the litigation request or demand (or the appropriate
portions) to such other agency for action.
(2) Inform the requesting party or issuing court.
(e) If the litigation request or demand requires a response before
a determination can be made, the SSS GC or other SSS legal advisor will
inform
[[Page 41056]]
the requesting party or the issuing court (through the Department of
Justice) that the request or demand is still under consideration. The
SSS GC or other SSS legal advisor also may seek a stay from the court
in question until a final determination is made.
(f) Upon making a final determination pursuant to Sec. 1660.7(a),
the SSS GC or other SSS legal advisor will inform the requesting party
or issuing court.
(g) If the SSS GC or other SSS legal advisor approves the release
of official information or the presentation of witness testimony,
personnel will limit the disclosure to those matters approved by the
SSS GC or other SSS legal advisor. Personnel may not release, produce,
comment on, or testify about any official information without the prior
written approval of the SSS GC or other SSS legal advisor.
(h) If a court orders a disclosure that the SSS GC or other SSS
legal advisor previously disapproved or has yet to approve, personnel
must respectfully decline to comply with the court's order unless the
SSS GC or other SSS legal advisor directs otherwise.
Sec. 1660.10 Procedures--fees.
Parties seeking official information by litigation request or
demand may be charged reasonable fees to reimburse expenses associated
with the Government's response. These reimbursable expenses may include
the cost of:
(a) Materials and equipment used to search for, copy, and produce
responsive information.
(b) Personnel time spent processing and responding to the request
or demand.
(c) Attorney time spent assisting with the Government's response,
to include reviewing the request or demand and the potentially
responsive information.
Sec. 1660.11 Procedures--expert or opinion testimony.
In any legal proceeding before the SSS or in which the United
States (including any Federal agency or officer of the United States)
is a party:
(a) The SSS GC shall arrange for an employee to testify as a
witness for the United States whenever the attorney representing the
United States requests it.
(b) SSS personnel may testify for the United States both as to
facts within their personal knowledge and as an expert or opinion
witness. Except as provided in paragraph (c) of this section, SSS
personnel may not testify as an expert or opinion witness, with regard
to any matter arising out of their official duties or the functions of
the SSS, for any party other than the United States in any legal
proceeding in which the United States is a party. SSS personnel who
receive a demand to testify on behalf of a party other than the United
States may testify as to facts within the employee's personal
knowledge, provided that the testimony be subject to the prior written
approval of the SSS GC or other SSS legal advisor and to the Federal
Rules of Civil Procedure and any applicable claims of privilege, the
anticipated testimony is not adverse to the interests of the SSS or the
United States Government, and is presented at no cost to the
Government.
(c) SSS personnel may testify as an expert or opinion witness on
behalf of the SSS or in any legal proceeding conducted by the SSS or
the United States.
Daniel A. Lauretano, Sr.,
Selective Service System General Counsel & Federal Register Liaison
Officer.
[FR Doc. 2023-13374 Filed 6-22-23; 8:45 am]
BILLING CODE 8015-01-P
