[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]


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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.

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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.
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    \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.
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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