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 dlauretano@sss.gov, or by mail to: 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, dlauretano@sss.gov.

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 § 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 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.

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. 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 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 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:

PART 1660—RELEASE OF OFFICIAL INFORMATION IN LITIGATION AND PRESENTATION OF WITNESS TESTIMONY BY SSS PERSONNEL (TOUHY REGULATION)

Authority: 5 U.S.C. 301; 50 U.S.C. 3809; & E.O. 11623, as amended by E.O. 13286, Feb 28, 2003.