Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 59449 

Creek Road and Wintu Way. From the 

beginning point, proceed southeasterly 

along Wintu Way, crossing onto the 

Allendale map, to the terminus of Wintu 

Way; then 

(2) Proceed south-southwest in a 

straight line for 1.05 miles to the eastern 

terminus of Morse Lane; then 

(3) Proceed westerly along Morse 

Lane to its intersection with Olive 

School Lane; then 

(4) Proceed north-northwest in a 

straight line for 2.52 miles, crossing over 

the northeastern corner of the Mount 

Vaca map and onto the Monticello Dam 

map, to the line’s intersection with 

Highway 128, approximately 2.78 miles 

west of the intersection of Highway 128 

and County Road 89; then 

(5) Proceed north in a straight line to 

the intersection of the line with the 

Chickahominy Slough; then 

(6) Proceed east-southeast along the 

Chickahominy Slough, crossing onto the 

Winters map, to its intersection with the 

170-foot elevation contour; then 

(7) Proceed south-southeasterly along 

the 170-foot elevation contour to its 

intersection with the Winters Canal; 

then 

(8) Proceed south along the Winters 

Canal to its intersection with the 

terminus of an unnamed local road; 

then 

(9) Proceed due west in a straight line 

to the 200-foot elevation contour; then 

(10) Proceed south in a straight line to 

the northern terminus of County Road 

88; then 

(11) Proceed south along County Road 

88 to its southern terminus and 

continue south in a straight line to 

Valley Oak Drive; then 

(12) Proceed southerly along Valley 

Oak Drive to its intersection with 

Highway 128; then 

(13) Proceed southeasterly in a 

straight line for 1.04 miles, returning to 

the beginning point. 

Signed: August 21, 2023. 

Mary G. Ryan, 

Administrator. 

Approved: August 22, 2023. 

Thomas C. West, Jr., 

Deputy Assistant Secretary (Tax Policy). 

[FR Doc. 2023–18588 Filed 8–28–23; 8:45 am] 

BILLING CODE 4810–31–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) 

AGENCY: United States Selective Service 

System. 

ACTION: Final rule. 

SUMMARY: The Selective Service System 

(SSS) is finalizing regulations to 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: This rule is effective September 

28, 2023. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Daniel A. Lauretano, Sr., General 

Counsel, 703–605–4012, dlauretano@

sss.gov. 

SUPPLEMENTARY INFORMATION: SSS 

published a proposed rule on June 23, 

2023 (88 FR 41051). No public 

comments were received and SSS is 

finalizing this rule without change. 

A. Summary of New Regulatory 

Provisions and Their Impact 

The final rule creates Touhy 

regulations for the SSS 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 final rule sets 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 final rule also 

sets forth certain definitions, it 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, 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 final rule is intended 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 final rule 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 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 lawenforcement officer, agent, or 

organization. 

The final rule 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 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 final rule does not create any 

right or benefit (substantive or 

procedural) enforceable by law against 

the SSS or the United States. 

The final rule defines: Court, 

Demand, Disclosure, Legal advisor, 

Litigation, Litigation request, Official 

information, Personnel, and SSS 

Components. 

The final rule 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 


ddrumheller on DSK120RN23PROD with RULES1
59450 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 

1This 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. 

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 part 1660, 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 

part 1660. 

(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. 

(4) 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. 

(5) 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. 

(6) An explanation of the 

unavailability of the requested official 

information or employee testimony 

through other sources. 

(7) An explanation of how each of the 

factors set forth in 32 CFR 1660.8 

applies to their demand. 

The final rule requires 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 final rule 

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 final rule creates new 

regulations spanning §§ 1660.1 through 

1660.11. 

C. Expected Impact of the Final Rule 

This final rule action will not impose 

any new costs. These 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 

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 

final 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 final 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 final 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 final rule will not 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 59451 

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 

amends 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 General Counsel. 

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; 

and E.O. 11623, 36 FR 19963, 3 CFR, 1971– 

1975 Comp., p. 614, as amended by E.O. 

13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 

166. 

§ 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). 

§ 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 

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. (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. (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 


ddrumheller on DSK120RN23PROD with RULES1
59452 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 

a volunteer board member (local, panel, 

multicounty, intracounty, district 

appeals). 

(6) Members 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 intercounty boards). 

(8) All other organizational entities 

within the SSS. 

§ 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 

§ 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 the 

provisions in paragraphs (b) and (c) is 

the basis for appropriate administrative 

procedures with respect to civilian 

employees. Moreover, violations of this 

paragraph (d) 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—the Selective 

Service System General Counsel. 

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. 

§ 1660.6 Responsibilities—the 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 44 U.S.C. chapters 21, 22, 

31, 33, and 35; 5 U.S.C. 102, 105, 552, 

and 552a; 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, 2013; Executive Order 12958, 

‘‘Classified National Security 

Information,’’ April 17, 1995, as 

amended; and 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; and 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. 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 59453 

(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 

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. 

§ 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., 

General Counsel. 

[FR Doc. 2023–18601 Filed 8–28–23; 8:45 am] 

BILLING CODE 8015–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2023–0743] 

RIN 1625–AA00 

Safety Zone; Lahaina Boat Basin, Maui, 

HI—Emergency Operations and Port 

Recovery 

AGENCY: Coast Guard, Department of 

Homeland Security (DHS). 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone for 

the navigable waters in the vicinity of 

Lahaina Boat Basin, Maui, Hawaii. The 

temporary safety zone encompasses all 

waters extending 200 yards from shore 

starting from the potential safety 

hazards associated with the damage 

assessment, debris management, vessel 

salvage and port recovery of Lahaina 

Boat Basin and surrounding waters, 

through September 27, 2023. Entry of 

vessels or persons into this zone is 

prohibited unless specifically 

authorized by the Captain of the Port 

Sector Honolulu or designated 

representative. 

DATES: This rule is effective without 

actual notice from August 29, 2023, 

through September 27, 2023. For the 

purposes of enforcement, actual notice 

will be used from August 24, 2023, until 

August 29, 2023. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to https://

www.regulations.gov, type USCG–2021– 

0742 in the search box and click 

‘‘Search.’’ Next, in the Document Type 

column, select ‘‘Supporting & Related 

Material.’’ 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Lieutenant Commander Wade 

Thomson, Waterways Management 

Division, U.S. Coast Guard Sector 

Honolulu at (808) 541–4359 or 

Wade.P.Thomson@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

COTP Captain of the Port 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of proposed rulemaking 

§ Section 

U.S.C. United States Code 

II. Background Information and 

Regulatory History 

On August 9, 2023, high winds and 

wildfires struck portions of Maui, 

Hawaii, causing damage to coastal 

infrastructure and prompting mass 

rescue operations for area residents. 

On August 9, 2023, the Coast Guard 

issued a rulemaking creating a 

temporary safety zone for all waters 

extending 1 nautical mile from shore 

starting from the northernmost point of 

Kekaa Point, Maui, thenceforth to the 

southernmost point at Hekili Point, 

Maui, to protect personnel, vessels, and 

the marine environment from potential 

hazards associated with emergency 

response and port recovery operations 

after wildfires affected the area (88 FR 

55373, August 15, 2023). The safety 

zone was effective through August 23, 

2023. A copy of the rulemaking that 

ended on August 23, 2023, is available 

in Docket USCG–2023–0669, which can 

be found using instructions in the 

ADDRESSES section. However, additional 

time is needed to continue to provide 

protection against hazards in the area 

due to emergency response and port 

recovery operations. The safety zone 

encompasses all waters extending 200 

yards from shore starting from the 

northernmost boundary at Wahikuli 

Wayside Park, Maui, thenceforth to the 

southernmost boundary at Launiupoko 

Beach Park, Maui. 


ddrumheller on DSK120RN23PROD with RULES1