[Federal Register Volume 89, Number 25 (Tuesday, February 6, 2024)]
[Proposed Rules]
[Pages 8112-8126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02115]


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SELECTIVE SERVICE SYSTEM

32 CFR Part 1662

RIN 3240-AA03


Freedom of Information Act Regulations

AGENCY: United States Selective Service System.

ACTION: Proposed rule.

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SUMMARY: The Selective Service System (SSS) proposes the following 
revisions to its Freedom of Information Act (FOIA) regulations to meet 
the requirements set forth in the Electronic Freedom of Information Act 
Amendments of 1996 (E-FOIA); the Openness Promotes Effectiveness 
requirement in the National Government Act of 2007 (the OPEN Government 
Act); and the FOIA Improvement Act of 2016 (FOIA Improvement Act). This 
proposed rule comprehensively updates the Agency's FOIA regulations.

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 
<a href="/cdn-cgi/l/email-protection#026467666770636e7067656b717667706e6b636b716d6c427171712c656d74"><span class="__cf_email__" data-cfemail="066063626374676a7463616f757263746a6f676f7569684675757528616970">[email protected]</span></a>, or by mail to: Selective Service 
System, Federal Register Liaison, 1501 Wilson Boulevard, Suite 700, 
Arlington, VA 22209.
    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, <a href="/cdn-cgi/l/email-protection#e1858d8094938495808f8ea1929292cf868e97"><span class="__cf_email__" data-cfemail="583c34392d2a3d2c393637182b2b2b763f372e">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. Background & Legal Basis for This Rule

A. The Housekeeping Statute

    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 FOIA is a Federal statute 
that allows the public to request records from the Federal government. 
The FOIA provides

[[Page 8113]]

that any person has a right, enforceable in court, to obtain access to 
Federal agency records subject to the FOIA, except to the extent that 
any portions of such records are protected from public disclosure by 
one of nine exemptions or other law. Additionally, under the FOIA, 
agencies must make records specified in 5 U.S.C. 552(a)(2) (e.g., 
instructional manuals issued to employees, general statements of 
policy, etc.) available for public inspection in an electronic format. 
The FOIA also statutorily requires Federal agencies to annually report 
on numerous and various metrics to the Department of Justice (DOJ).
    Since the most recent update to 32 CFR part 1662, the E-FOIA, the 
OPEN Government Act, and the FOIA Improvement Act have been enacted. 
These laws provide guidance to agencies for the implementation of the 
FOIA requirements. This proposed rule updates and revises part 1662 
consistent with these laws.
    The revisions will better streamline the process for the Agency's 
FOIA policies and procedures. These updates are consistent with the 
Plain Writing Act of 2010 which requires Federal agencies to use clear 
communications that the public can understand and use. They underscore 
the FOIA guidelines issued by Attorney General Merrick Garland in his 
March 15, 2022, Memorandum for Heads of Executive Departments and 
Agencies. The Memorandum directs the heads of all executive branch 
departments and agencies to apply a presumption of openness in 
administering the FOIA, instructs agencies to remove barriers to 
access, and asks agencies to help requesters understand the FOIA 
process.
    In the sections that follow, SSS explains the requirements of the 
E-FOIA, the OPEN Government Act, and the FOIA Improvement Act. To 
visualize the proposed reorganization of part 1662, the Agency provides 
a table that identifies the old (existing) regulatory sections, the 
sections to which the content moved, and the names of the new sections. 
Following the table is a section-by-section summary wherein SSS 
identifies proposed changes to ensure compliance with the E-FOIA, the 
OPEN Government Act, and the FOIA Improvement Act. It also updates the 
SSS process for ease of understanding the Agency's FOIA policies and 
procedures.

B. The E-FOIA

    The E-FOIA requires agencies to make certain types of records, 
created by the Agency on or after November 1, 1996, available 
electronically. It requires agencies to make available for public 
inspection, via an electronic reading room, ``copies of all records, 
regardless of form or format that have been released to any person 
[under the FOIA] and which, because of the nature of their subject 
matter, the Agency determines have become or are likely to become the 
subject of subsequent requests for substantially the same records.''

C. The OPEN Government Act

    The OPEN Government Act amended the FOIA by providing new 
procedural and reporting requirements agencies must implement in their 
administration of the FOIA. It requires that (1) all FOIA requests that 
will take longer than ten days to process must be assigned an 
individualized tracking number and (2) agencies must provide requesters 
with a telephone line or internet service from which requesters can 
receive the status of their request(s).
    The statute established the Office of Government Information 
Services (OGIS) within the National Archives and Records Administration 
that, among other duties, offers mediation services between FOIA 
requesters and Federal agencies as an alternative to litigation. It 
further directs agencies to designate a Chief FOIA Officer, who: (1) 
has responsibility for FOIA compliance; (2) monitors FOIA 
implementation; (3) makes recommendations to the Agency head concerning 
improvements to FOIA implementation; (4) reports to the Attorney 
General (through the Agency Head), as requested, on the Agency's FOIA 
implementation; (5) facilitates public understanding of the purposes of 
FOIA's statutory exemptions; and (6) designates one or more FOIA Public 
Liaisons. The FOIA Public Liaison serves as an official to whom a FOIA 
requester can raise concerns about service and is responsible for 
assisting in reducing delays in FOIA request processing, helping 
resolve disputes, and helping requesters understand the status of their 
requests.
    The OPEN Government Act also revised annual reporting obligations, 
mandating reports on agency compliance with the FOIA to include 
information on: (1) FOIA denials based upon particular statutes; (2) 
response times; and (3) compliance by the agency and by each principal 
component thereof.
    Regarding FOIA request processing, the OPEN Government Act: (1) 
modifies and specifies the time limits for an agency to determine 
whether to comply with a FOIA request; (2) establishes limitations on 
the circumstances under which the statutory time period may be 
``tolled''; and (3) prohibits an agency from assessing search or 
duplication fees under the FOIA if it fails to comply with time limits, 
provided that no unusual or exceptional circumstances apply.
    Lastly, the OPEN Government Act provides for the definition of 
``representative of the news media'' and amends the definition of 
``record'' to include any information maintained by an agency 
contractor ``for the purposes of record management.''
    The changes to part 1662 in this proposed rule conform with the 
requirements of the OPEN Government Act as follows:
    <bullet> Sections 1662.1 and 1662.2 introduce and provide 
information on the services of the FOIA Public Liaison and OGIS;
    <bullet> Section 1662.2 defines ``representative of the news 
media'' and adds new terms such as the FOIA Public Liaison, OGIS, and 
Chief FOIA Officer; and
    <bullet> Section 1662.11 updates and clarifies the following 
business practices: (1) the Chief FOIA Officer's acknowledgment of FOIA 
requests; (2) when a request is considered perfected; (3) multi-
tracking procedures; (4) unusual circumstances; and (5) tolling of the 
20-business-day statutory time period.

D. The FOIA Improvement Act

    The FOIA Improvement Act took effect on June 30, 2016, and applies 
to any FOIA request made after the date of enactment. Its intent is to 
improve Agency transparency and responsiveness in processing FOIA 
requests.
    The statute codifies the ``foreseeable harm'' standard, 
establishing that agencies may only withhold information if the Agency 
reasonably foresees that disclosure would harm an interest protected by 
a statutory exemption, or if disclosure is prohibited by existing law. 
Unless the record is prohibited from disclosure by law, asserting a 
FOIA exemption alone is not sufficient; an agency must also determine 
that release of the record would cause foreseeable harm to others/
interests protected under the exemption.
    The FOIA Improvement Act also imposes numerous administrative and 
procedural requirements upon Federal agencies. It adds new elements to 
the annual reports that capture the number of record denials and the 
number of records of general interest or use to the public that are 
made available for public inspection. It also creates new duties for 
the Chief FOIA Officer, requiring the

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Chief FOIA Officer to (1) serve as the primary liaison between OGIS and 
the Office of Information Policy at DOJ and (2) offer training to staff 
regarding their FOIA responsibilities. It also creates a council of 
Chief FOIA Officers whose purpose is to improve an agency's 
administration of the FOIA. Within the Agency's proposed revisions to 
part 1662, it is not addressing the additional reporting requirements 
provided in the FOIA Improvement Act, as they do not affect its day-to-
day administration of the FOIA.
    This law also requires agencies to offer the services of the FOIA 
Public Liaison and OGIS in all decision letters. It further increases 
the time for appeals, now allowing requesters at least 90 days to file 
an administrative appeal of an adverse determination. Additionally, it 
codifies the ``rule of three,'' which requires agencies to make 
available for public inspection, in an electronic format, records that 
are of general interest or have been requested three or more times and 
released to any person.
    Further, it prohibits an agency from charging search and/or 
duplication fees under the FOIA for providing records if the agency 
misses a deadline for complying with a FOIA request, unless unusual 
circumstances exist, and the agency takes certain action to notify the 
requester. Additionally, it amends one of the privileges recognized 
under the FOIA Exemption 5, the deliberative process privilege, by 
providing that this privilege cannot be applied to records that are 25 
years or older at the time of the FOIA request.
    Finally, the FOIA Improvement Act requires the head of each agency 
to (1) review agency regulations and issue regulations on procedures 
for disclosure of records in accordance with the amendments made by the 
bill and (2) include in such regulations procedures for engaging in 
dispute resolution through the FOIA Public Liaison and OGIS.
    The changes to part 1662 in this Proposed Rule conform with the 
requirements of the FOIA Improvement Act as follows:
    <bullet> Sections 1662.1 and 1662.15 address the FOIA Public 
Liaison and OGIS;
    <bullet> Sections 1662.3(a) and 1662.11(k) add the foreseeable harm 
standard;
    <bullet> Section 1662.13 clarifies the agency's fee charging rules, 
including when unusual circumstances apply;
    <bullet> Section 1662.16 updates the appeal timeframe to 90 days 
(from 30 days);
    <bullet> Section 1662.22(a) states that the deliberative process 
privilege does not apply to records that are 25 years or older at the 
time of the FOIA request; and
    <bullet> Section 1662.26 sets forth that records requested three or 
more times will be publicly posted.

II. The FOIA Process at SSS

    The revised regulations at 32 CFR part 1662 ensure the SSS FOIA 
program is easier for the public to navigate.
    Under current procedures, the Chief FOIA Officer conducts a 
thorough review to ensure proper disclosure. The Agency's Chief FOIA 
Officer makes the final determination on the release of records in 
response to initial requests and the Director of Selective Service is 
designated the final authority on appeal determinations. SSS also makes 
available for public inspection, in an electronic format, records that 
have been requested and released three or more times and other 
specified records described in revised Sec.  1662.26, available at 
www.sss.gov/foia.

III. Section-by-Section Changes

32 CFR 1662.1

    The Agency is revising this section in its entirety, including the 
heading. The heading has been changed from ``Sec.  1662.1. 
Applicability of this part'' to ``Sec.  1662.1. Scope and purpose of 
this part.'' The current section states: ``The provisions of this part 
prescribe the procedures for requests for information under 5 U.S.C. 
552, as amended (Freedom of Information Act).'' The proposed section 
provides readers a roadmap of the contents of part 1662; sets forth 
FOIA's mandate to provide records unless exemptions apply; and the 
requirement to make certain records available for public inspection. 
This section introduces the services of the FOIA Public Liaison and 
OGIS. Proposed paragraph (c) states that nothing in part 1662 
supersedes the information located in parts 1660 and 1665 of the 
Agency's regulations.

32 CFR 1662.2

    The Agency is revising this section in its entirety, including the 
heading, which will change from ``Sec.  1662.2. Procedure for 
requesting information'' to ``Sec.  1662.2. Definitions.'' The 
definitions contained in this section derive from the FOIA, the E-FOIA, 
the Open Government Act, and the FOIA Improvement Act. The definitions 
explain two new positions and one new entity created by the OPEN 
Government Act: Chief FOIA Officer, FOIA Public Liaison, and OGIS. The 
OPEN Government Act also amends the definition of ``records'' and 
provides for the definition of ``representative of the news media''; 
therefore, both items are addressed within this revised section. To 
promote openness in government, SSS is including definitions of terms 
used regularly in the administration of the FOIA. In addition to the 
aforementioned definitions, the terms included in this section are 
commercial interest; component; expedited processing; exemption; fee 
category; fee waiver; FOIA request; non-commercial scientific 
institution; online FOIA portal; other requester; production; reading 
room; redact; special services; submitter; tolling; and trade secrets 
and commercial or financial information.

32 CFR 1662.3

    The Agency is revising this section in its entirety, including the 
heading, which will change from ``Sec.  1662.3. Identification of 
information requested'' to ``Sec.  1662.3. SSS's FOIA policy.'' 
Paragraph (a) of this section provides language acknowledging the 
Agency's presumption of openness, meaning that SSS will withhold 
information only if disclosure would cause foreseeable harm, as 
codified in the FOIA Improvement Act, or if the disclosure is 
prohibited by law.
    Paragraphs (b) and (c) advise the public where they may find 
information about the Chief FOIA Officer's authority to release and 
withhold records and records that are available for public inspection. 
However, the FOIA does not require the Agency to give opinions, conduct 
research, answer questions, nor create records in the administration of 
the FOIA, which is set forth in paragraph (d).

32 CFR 1662.4

    The Agency is revising this section in its entirety, including the 
heading, which will change from ``Sec.  1662.4. Consideration of 
request for information'' to ``Sec.  1662.4. Relationship between the 
FOIA and the Privacy Act of 1974.'' This revises and moves language 
from current Sec.  1662.6(b)(4), which states that requests for records 
contained within a system of records will be handled under the Privacy 
Act of 1974, and that under such search, only fees for reproduction 
costs may be charged. The proposed section adds a notification for the 
public that requests for their own records will be handled under the 
Privacy Act of 1974 and the FOIA.

32 CFR 1662.5

    The Agency is revising this section in its entirety, including the 
heading, which is changing from ``Sec.  1662.5. Inspection, copying, 
and obtaining copies'' to ``Sec.  1662.5. Who can file a

[[Page 8115]]

FOIA request?'' This section clearly identifies who can file a FOIA 
request.

32 CFR 1662.6

    The Agency is revising this section in its entirety, including the 
heading, which will change from ``Sec.  1662.6. Fee schedule; waiver of 
fees'' to ``Sec.  1662.6. Requirements of a FOIA request.' '' Current 
Sec.  1662.3 states that a FOIA requester ``shall provide a reasonably 
specific description of the information sought.. [and i]f the 
description is not sufficient, the records manager will notify the 
requester and, to the extent possible, indicate the additional 
information required.'' This new section provides a list of criteria 
that must be met for a request to be considered a FOIA request, and 
thus subject to the rules discussed in this part. This section will 
help requesters ``perfect'' their request on first attempt, which will 
help streamline the FOIA process.

32 CFR 1662.7

    This is a new section with the heading ``Sec.  1662.7. Where to 
submit a FOIA request.'' Currently Sec.  1662.2 does not provide 
information on how and where to submit a FOIA request via mail, email, 
or Agency website. This new section eliminates the title ``Records 
Manager'' and replaces it with ``FOIA Officer.'' It sets forth options 
to submit requests by mail, via email, or online.

32 CFR 1662.8

    This is a new section with the heading ``Sec.  1662.8. Requests not 
processed under the FOIA.'' It states that the Agency will not process 
the following FOIA requests for records that are: (a) publicly 
available; (b) distributed through a public information campaign (e.g., 
leaflets); and (c) earnings records. Paragraph (d) states that the 
Agency will not process a FOIA request that fails to meet the 
requirements set forth in proposed Sec.  1662.21. The Chief FOIA 
Officer will provide instructions and/or request additional information 
so that the request adheres to the requirements of proposed Sec.  
1662.21.

32 CFR 1662.9

    This is a new section with the heading ``Sec.  1662.9. Chief FOIA 
Officer's authority.'' It states that the Chief FOIA Officer is 
authorized to make determinations about: (a) the release or withholding 
of records; (b) expedited processing; (c) charging or waiver of fees; 
and (d) other matters related to the processing of FOIA requests. It 
clarifies that the Chief FOIA Officer's determination is provided in 
writing and, if the requester disagrees with the Chief FOIA Officer's 
determination, the requester may appeal to the Director of Selective 
Service as described in proposed Sec.  1662.16.

32 CFR 1662.10

    This is a new section with the heading ``Sec.  1662.10. 
Responsibility for Responding to Requests.'' It describes situations 
where records subject to a FOIA request were created/provided by 
another agency. When making a referral to another Federal agency, the 
Chief FOIA Officer will ask the other agency to process the request or 
portion of the request for records that originated with that agency. 
Paragraphs (a)(2), (b), and (c) explain how SSS handles records that 
originated with another agency when that other agency is not subject to 
the FOIA (paragraph (a)(2)); when the Chief FOIA Officer will advise a 
requester to submit their request to another agency (paragraph (b)); 
and the Chief FOIA Officer's consultations with another entity 
(paragraph (c)).

32 CFR 1662.11

    This is a new section with the heading ``Sec.  1662.11. How does 
SSS process FOIA requests?'' It is comprised of paragraphs (a) through 
(j) that capture the following: the Agency's acknowledgment of FOIA 
requests; when a request is considered ``perfected''; where to find 
information in the regulations concerning expedited processing; the 
Agency's multi-tracking procedures; what constitutes unusual 
circumstances; the Agency's ability to aggregate requests; fee 
information that is discussed in proposed Sec.  1662.13; the Chief FOIA 
Officer's ability to stop or ``toll'' the 20 business day statutory 
period; records retrieval information; unproductive searches; 
furnishing records; handling and release of records under the FOIA 
exemptions; and burdensome requests, wherein the Agency explains that 
SSS will not process a request when doing so would be unduly burdensome 
on the Agency.

32 CFR 1662.12

    This is a new section with the heading ``Sec.  1662.12. Expedited 
processing,'' which sets forth the ``compelling need'' criteria. The 
Chief FOIA Officer decides to grant or deny expedited processing by 
applying the criteria. Denials may be appealed to the Director of 
Selective Service under the process set forth in proposed Sec.  
1662.16.

32 CFR 1662.13

    This is a new section with the heading ``Sec.  1662.13. Fees 
associated with processing FOIA requests.'' This section revises 
existing (old) Sec.  1662.6 to make the processes and procedures easier 
for the public to understand. This section includes search, 
duplication, and review fees; restrictions on charging fees; 
requirement to provide notice when fees are anticipated to be in excess 
of $25.00; charges for other services; charging interest on unpaid 
bills; aggregating requests; advance payments; and requirements for a 
waiver or reduction of fees.

32 CFR 1662.14

    This is a new section with the heading ``Sec.  1662.14. Release of 
records.'' This section clarifies the Agency's rules concerning records 
previously released; advises the public of the Agency's FOIA electronic 
reading room; and sets forth the procedures when only poor-quality 
copies of a record are available.

32 CFR 1662.15

    This is a new section with the heading ``Sec.  1662.15. FOIA Public 
Liaison and Office of Government Information Services,'' which provides 
requesters with information on how to seek the services of the FOIA 
Public Liaison and OGIS.

32 CFR 1662.16

    This is a new section with the heading ``Sec.  1662.16. Appeals of 
the Chief FOIA Officer's determination.'' The SSS revisions update the 
information located in the existing regulation at Sec.  1662.4(b) in 
newly created paragraphs (a) through (e). Paragraph (a) sets the appeal 
period at 90 days and clarifies that the Director of Selective Service 
makes final appeal determinations. Under paragraph (b), the Agency is 
adding language concerning the SSS's acknowledgement of appeals and 
paragraph (c) provides clarifying information concerning how long the 
Agency generally takes to process appeals. Under paragraph (d), SSS 
includes additional information explaining that the Director of 
Selective Service makes final appeal determinations. Finally, paragraph 
(e) advises requesters of their right to seek review in a U.S. District 
Court if they disagree with the appeal determination.

32 CFR 1662.17

    This is a new section with the heading ``Sec.  1662.17. U.S. 
District Court Action.'' It states that if requesters disagree with the 
Director of Selective Service's decision, they may ask a U.S. District 
Court to review the decision.

32 CFR 1662.18

    This is a new section with the heading ``Sec.  1662.18. The FOIA 
Exemption 1: National defense and

[[Page 8116]]

foreign policy,'' which codifies the FOIA Exemption 1 in the Agency's 
regulations.

32 CFR 1662.19

    This is a new section with the heading ``Sec.  1662.19. The FOIA 
Exemption 2: Internal personnel rules and practices,'' which codifies 
the FOIA Exemption 2 in the Agency's regulations.

32 CFR 1662.20

    This is a new section with the heading ``Sec.  1662.20. The FOIA 
Exemption 3: Records exempted by other statutes,'' which codifies the 
FOIA Exemption 3 in the Agency's regulations.

32 CFR 1662.21

    This is a new section with the heading ``Sec.  1662.21. The FOIA 
Exemption 4: Trade secrets and confidential commercial or financial 
information,'' which codifies the FOIA Exemption 4 in the Agency's 
regulations. It sets forth the procedures under which a submitter may 
challenge release of information they believe to be exempt from 
disclosure under this exemption. This section includes information 
regarding the submitter's notice; submitter's opportunity to object to 
disclosure; notice of intent to disclose; notice of FOIA lawsuit; and 
requester notification.

32 CFR 1662.22

    This is a new section with the heading ``Sec.  1662.22. The FOIA 
Exemption 5: Internal documents,'' which codifies the FOIA Exemption 5 
in the Agency's regulations. It includes the deliberative process 
privilege; attorney work product privilege; attorney-client privilege; 
and the 25-year sunset on records otherwise exempt under the 
deliberative process privilege.

32 CFR 1662.23

    This is a new section with the heading ``Sec.  1662.23. The FOIA 
Exemption 6: Clearly unwarranted invasion of personal privacy,'' which 
codifies the FOIA Exemption 6 in the Agency's regulations. Paragraph 
(a) sets forth the balancing test for when the Chief FOIA Officer must 
decide whether to release records that contain personal or private 
information. The Chief FOIA Officer must weigh the foreseeable harm of 
invading a person's privacy against the public interest in disclosure. 
Paragraph (b) notifies requesters that the Chief FOIA Officer will not 
disclose information regarding employee(s) contact information and/or 
duty station if the disclosure places employee(s) at risk of injury or 
other harm.

32 CFR 1662.24

    This is a new section with the heading ``Sec.  1662.24. The FOIA 
Exemption 7: Law enforcement,'' which codifies the FOIA Exemption 7 in 
the Agency's regulations.

32 CFR 1662.25

    This is a new section with the heading ``Sec.  1662.25. The FOIA 
Exemptions 8 and 9: Records on financial institutions; records on 
wells,'' which codifies the FOIA Exemptions 8 and 9 in the Agency's 
regulations.

32 CFR 1662.26

    This is a new section with the heading ``Sec.  1662.26. Records 
available for public inspection,'' which lists the records SSS is 
required to make available for public inspection in electronic format.

32 CFR 1662.27

    This is a new section with the heading ``Sec.  1662.27. Where 
records are published,'' which sets forth the acceptable methods of 
publication of records pursuant to the provisions of 5 U.S.C. 552(a)(1) 
and (a)(2).

32 CFR 1662.28

    This is a new section with the heading ``Sec.  1662.28. 
Publications for sale through the Government Publishing Office.'' These 
publications include, but are not limited to, the Military Selective 
Service Act, SSS regulations, Legal Aspects of the Selective Service 
System, and Federal Register issues.

IV. Regulatory Procedures

A. Expected Impact of the Proposed Rule

    The Agency does not anticipate any additional costs associated with 
promulgations of the regulations contained herein.
    The Agency anticipates qualitative benefits from the proposed 
revisions to the FOIA regulations from streamlined and codified FOIA 
policies and procedures. SSS expects the codified regulations will 
benefit both the Agency and the public because the administration of 
the FOIA will be better organized and user friendly for requesters. The 
purpose of the FOIA is to provide the public with access to government 
records, and administrative transparency is paramount to a successful 
FOIA program. Clear policies generate efficient and effective 
processing of FOIA requests.

B. 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, distributive 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 (OMB) 
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).

C. 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.

D. 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.

E. 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.

F. 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

[[Page 8117]]

not have a substantial effect on state and local governments.

G. 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 January 24, 2024, 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 these 
officials has requested that the matter be referred to the President 
for decision.
    These proposed regulations were reviewed and approved by Joel C. 
Spangenberg, Acting Director of Selective Service.

List of Subjects in 32 CFR Part 1662

    Freedom of information.

0
For the reasons stated in the preamble, the Selective Service System 
proposes to revise 32 CFR part 1662 to read as follows:

PART 1662--FREEDOM OF INFORMATION ACT (FOIA) PROCEDURES

Sec.
1662.1 Scope and purpose of this part.
1662.2 Definitions.
1662.3 SSS's FOIA policy.
1662.4 Relationship between the FOIA and the Privacy Act of 1974.
1662.5 Who can file a FOIA request?
1662.6 Requirements of a FOIA request.
1662.7 Where to submit a FOIA request.
1662.8 Requests not processed under the FOIA.
1662.9 Chief FOIA Officer's authority.
1662.10 Responsibility for responding to requests.
1662.11 How does SSS process FOIA requests?
1662.12 Expedited processing.
1662.13 Fees associated with processing FOIA requests.
1662.14 Release of records.
1662.15 FOIA Public Liaison and the Office of Government Information 
Services.
1662.16 Appeals of the Chief FOIA Officer's determination.
1662.17 U.S. District Court action.
1662.18 The FOIA Exemption 1: National defense and foreign policy.
1662.19 The FOIA Exemption 2: Internal personnel rules and 
practices.
1662.20 The FOIA Exemption 3: Records exempted by other statutes.
1662.21 The FOIA Exemption 4: Trade secrets and confidential 
commercial or financial information.
1662.22 The FOIA Exemption 5: Internal documents.
1662.23 The FOIA Exemption 6: Clearly unwarranted invasion of 
personal privacy.
1662.24 The FOIA Exemption 7: Law enforcement.
1662.25 The FOIA Exemptions 8 and 9: Records on financial 
institutions; records on wells.
1662.26 Records available for public inspection.
1662.27 Where records are published.
1662.28 Publications for sale through the Government Publishing 
Office.

    Authority: 5 U.S.C. 301; 50 U.S.C. 3809; 5 U.S.C. 552 and 552a; 
18 U.S.C. 1905; 31 U.S.C. 9701; & E.O. 11623, as amended by E.O. 
13286, Feb 28, 2003.


Sec.  1662.1  Scope and purpose of this part.

    (a) The purpose of this part is to describe the Selective Service 
System's (SSS) policies and procedures for implementing the 
requirements of the Freedom of Information Act (FOIA) as set forth at 5 
U.S.C. 552. The FOIA mandates disclosure to the public of Federal 
agency records unless specific exemptions apply. The FOIA also requires 
an agency to proactively disclose records and make certain records 
available for public inspection.
    (b) The rules in this part describe how SSS makes records available 
to the public, including:
    (1) What constitutes a proper request for records;
    (2) How to make a FOIA request;
    (3) Who has the authority to release and withhold records;
    (4) What fees may be charged to process a request for records;
    (5) The timing of determinations regarding release;
    (6) The exemptions that permit the withholding of records;
    (7) A requester's right to seek assistance from the FOIA Public 
Liaison;
    (8) A requester's right to appeal the Agency's FOIA determination;
    (9) A requester's right to seek assistance from the Office of 
Government Information Services (OGIS) and then go to court if they 
still disagree with the Agency's release determination; and
    (10) The records available for public inspection.
    (c) The rules in this part do not revoke, modify, or supersede the 
SSS regulations relating to disclosure of information in parts 1660 or 
1665 of this chapter.


Sec.  1662.2.  Definitions.

    As used in this part:
    Agency means the Selective Service System. Agency may also refer to 
any executive department, military department, government corporation, 
government-controlled corporation, or other establishment in the 
executive branch of the Federal Government, or any independent 
regulatory agency. A private organization is not an agency even if it 
is performing work under contract with the Government or is receiving 
Federal financial assistance.
    Chief FOIA Officer means a senior official of SSS who has an 
Agency-wide responsibility for ensuring efficient and appropriate 
compliance with the FOIA, monitoring implementation of the FOIA 
throughout SSS, and making recommendations to the Director of Selective 
Service to improve SSS's implementation of the FOIA. The Director of 
Selective Service designates a Chief FOIA Officer for the Agency. The 
Director of Selective Service makes final decisions in response to 
appeals of the Chief FOIA Officer's determinations.
    Commercial interest includes interests relating to business, trade, 
and profit, as well as non-profit corporations, individuals, unions, 
and other associations. The interest of a representative of the news 
media in using the information for news dissemination purposes will not 
be considered a commercial interest.
    Component consists of the Office of the Director, National 
Headquarters Directorates and Offices, Data Management Center, Region 
Offices, and all other organizational entities within SSS that may 
maintain Agency records subject to a request under the FOIA.
    Duplication means the process of reproducing a copy of a record, or 
of the information contained in it, to the extent necessary to respond 
to a request. Copies include paper, electronic records, audiovisual 
materials, and other formats of Agency records.
    Educational institution means a preschool, elementary or secondary 
school, institution of undergraduate or graduate higher education, or 
institution of professional or vocational education, which operates a 
program of scholarly

[[Page 8118]]

research. To qualify for this category, a requester must show that the 
FOIA request is authorized by, and is made under the auspices of, a 
qualifying institution and that the records are sought to further a 
scholarly research goal of the institution, and not for a commercial 
use or purpose, or for individual use or benefit.
    Exemption means one of the nine exemptions to the mandatory 
disclosure of records permitted under section 552(b) of the FOIA.
    Expedited processing means the process set forth in the FOIA that 
allows requesters to request faster processing of their FOIA request if 
they meet specific criteria noted in Sec.  1662.12.
    Fee category means one of the three categories established by the 
FOIA to determine whether a requester will be charged fees under FOIA 
for search, review, and duplication. The categories are: commercial use 
requests; non-commercial scientific or educational institutions and 
news media requests; and all other requests.
    Fee waiver means the waiver or reduction of fees if a requester 
meets the requirements set forth in Sec.  1662.13.
    FOIA Officer means an SSS official whom the Director of Selective 
Service has delegated the authority to assist the Chief FOIA Officer in 
releasing or withholding records; assessing, waiving, or reducing fees 
in response to FOIA requests; and all other determinations regarding 
the processing of a FOIA request. In this capacity, the FOIA Officer is 
authorized to request and receive responsive records that may be 
maintained by other Agency components. Except for records subject to 
proactive disclosure pursuant to subsection (a)(2) of the FOIA, only 
the Chief FOIA Officer has the authority to release or withhold records 
or to waive fees in response to a FOIA request.
    FOIA Public Liaison means an Agency official who reports to the 
Agency Chief FOIA Officer and serves as a supervisory official to whom 
a requester can raise concerns about the service the requester received 
concerning the processing of the FOIA request. This individual is 
responsible for increasing transparency in the Agency's FOIA business 
process, helping requesters understand the status of requests, and 
assisting in the resolution of disputes. The FOIA Public Liaison may be 
contacted via email at <a href="/cdn-cgi/l/email-protection#c4828b8d85ea94b1a6a8ada7ea88ada5adb7abaa84b7b7b7eaa3abb2"><span class="__cf_email__" data-cfemail="f3b5bcbab2dda386919f9a90ddbf9a929a809c9db3808080dd949c85">[email protected]</span></a>.
    FOIA request means a written request that meets the criteria in 
Sec.  1662.6.
    Freedom of Information Act or FOIA means the law codified at 5 
U.S.C. 552 that provides the public with the right to request Agency 
records from Federal executive branch agencies.
    News means information that is about current events or that would 
be of current interest to the public. Examples of news media entities 
include television or radio stations that broadcast news to the public 
at large and publishers of periodicals, including print and online 
publications that disseminate news and make their products available 
through a variety of means to the public. SSS does not consider FOIA 
requests for records that support the news dissemination function of 
the requester to be commercial use. SSS considers ``freelance'' 
journalists who demonstrate a solid basis for expecting publication 
through a news media entity as working for that entity. A publishing 
contract provides the clearest evidence that a journalist expects 
publication; however, SSS also considers a requester's past publication 
record.
    Non-commercial scientific institution means an institution that 
does not further the commercial, trade, or profit interests of any 
person or entity and is operated for the purpose of conducting 
scientific research whose results are not intended to promote any 
particular product or industry.
    Online FOIA portal means the electronic application that SSS uses 
to process FOIA requests. The public may also submit requests directly 
to SSS via the online FOIA.gov--Freedom of Information Act.
    Other requester means any individual or organization whose FOIA 
request does not qualify as a commercial-use request, representative of 
the news media request (including a request made by a freelance 
journalist), or an educational or non-commercial scientific institution 
request.
    Production means the process of preparing the records for 
duplication, including the time spent in preparing the records for 
duplication (i.e., materials used, records/database retrieval, 
employee, and contractor time, as well as systems processing time).
    Reading room means an electronic location(s) that SSS uses to post 
records that are made available to the public without a specific 
request. SSS makes reading room records electronically available to the 
public through the SSS website, https://www.sss.gov/, including at 
https://www.sss.gov/foia/.
    Record(s) means any information maintained by an Agency, regardless 
of format, that is made or received in connection with official Agency 
business that is under the Agency's control at the time of the FOIA 
request. Record(s) includes any information maintained for an Agency by 
a third party. Record(s) does not include personal records of an 
employee, or other information in formally organized and officially 
designated SSS libraries and reading rooms, where such materials are 
available under the rules of the particular library.
    Redact means delete or mark over.
    Representative of the news media means any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn raw materials into a distinct work, 
and distributes that work to an audience.
    Request means asking for records, whether or not the requester 
refers specifically to the FOIA. Requests from federal agencies, 
subpoenas, and court orders for documents are not included within this 
definition.
    Review, unless otherwise specifically defined in this part, means 
examining records responsive to a request to determine whether any 
portions are exempt from disclosure. Review time includes processing a 
record for disclosure (i.e., doing all that is necessary to prepare the 
record for disclosure), including redacting the record and marking the 
appropriate FOIA exemptions. It does not include the process of 
resolving general legal or policy issues regarding exemptions.
    Search means the process of identifying, locating, and retrieving 
records responsive to a request, whether in hard copy or in electronic 
form or format, or by manual or automated/electronic means.
    Special services mean performing additional services outside of 
those required under the FOIA to respond to a request. Examples include 
using an overnight mail service to send the Agency's response to a FOIA 
request.
    SSS means the Selective Service System.
    Submitter means any person or entity that provides trade secrets or 
commercial or financial information to the Agency, and includes 
individuals, corporations, other organizational entities, and state and 
foreign governments.
    Tolling means temporarily stopping the running of a time limit. SSS 
may toll a FOIA request to seek clarification from the requester or to 
address fee issues, as further described in Sec.  1662.11.
    Trade secrets and commercial or financial information means trade 
secrets and commercial or financial information that are confidential, 
and are obtained by the Agency from a submitter, such that it may be 
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 
552(b)(4).

[[Page 8119]]

Sec.  1662.3.  SSS's FOIA policy.

    (a) Presumption of openness. The Agency will withhold information 
only if the Chief FOIA Officer reasonably foresees that disclosure 
would harm an interest protected by a FOIA exemption or if disclosure 
is prohibited by law.
    (b) Authority to release and withhold records. As described in 
Sec.  1662.9, the Agency's Chief FOIA Officer has the authority to:
    (1) Release or withhold records in response to initial requests;
    (2) Grant or deny expedited processing; and
    (3) Reduce or waive fees.
    (c) Records publicly available. The Agency makes available for 
public inspection, in an electronic format, records that have been 
requested and released three or more times and other specified records 
described in Sec.  1662.26.
    (d) Required record production. The FOIA does not require an Agency 
to give opinions, conduct research, answer questions, or create 
records.


Sec.  1662.4.  Relationship between the FOIA and the Privacy Act of 
1974.

    (a) Coverage. The FOIA and the rules in this part apply to all SSS 
records. The Privacy Act, 5 U.S.C. 552a, applies to records that are 
about individuals, but only if the records are in a system of records.
    (b) Requesting your own records. If you have filed a FOIA request 
and are an individual requesting your own records that are maintained 
in a system of records, or if you are a parent or legal guardian 
authorized to act on behalf of a minor or custodian who is seeking the 
records about a minor or individual who has been declared incompetent, 
the Agency will handle your request under the Privacy Act.


Sec.  1662.5.  Who can file a FOIA request?

    Any member of the public may submit a FOIA request to SSS. Under 
the FOIA, ``member of the public'' includes requests from individuals, 
corporations, state, and local agencies, as well as foreign entities. 
Requests from Federal agencies and Federal or state courts are not 
covered by the FOIA.


Sec.  1662.6.  Requirements of a FOIA request.

    (a) To be considered a FOIA request under this part, the following 
must occur:
    (1) The request must be written (either by hand or electronically);
    (2) The request must be submitted in accordance with Sec.  1662.7;
    (3) The requester must provide the following required contact 
information: requester's name, U.S. or foreign postal address, 
description of records sought, and fee willing to pay. While not 
required, the Agency encourages requesters to provide us with their 
email address and phone number; and
    (4) The request must clearly state and reasonably describe what SSS 
records are requested. Broad, sweeping requests and vague requests are 
not reasonably described. The requester must describe the records 
sought in sufficient detail to enable the Agency to locate the records 
with a reasonable amount of effort. When known, requests should 
identify the records sought by providing the name/title of the record, 
applicable date range, subject matter, offices, or employees involved, 
and record type. If the request is for electronic communications, such 
as email records, it would assist SSS if the requestor could provide as 
much information as possible, such as the names, position titles, or 
other identifying information about the Agency employees involved, as 
well as the applicable timeframe. Absent sufficient details, the Agency 
may be unable to search for or locate the records sought. The greater 
the date range, the longer it may take to process the request and the 
greater amount of fees that may be charged.
    (b) Requests that do not meet the required criteria above are not 
considered proper FOIA requests.
    (c) The FOIA requires an Agency to provide the record in any form 
or format requested by the person if the record is readily reproducible 
by the Agency in that form or format. SSS will not search or produce 
records in response to a FOIA request that the FOIA Officer determines 
would be unduly burdensome to process. FOIA requests are determined to 
be unreasonably burdensome when processing the FOIA request would 
significantly interfere with the ongoing operation of the Agency's 
programs.


Sec.  1662.7.  Where to submit a FOIA request.

    Submission of requests. Requesters must submit FOIA requests in 
writing to the Agency through one of the following options:
    (a) Online FOIA portal: link available from the Agency's 
www.sss.gov/foia website.
    (b) Email: <a href="/cdn-cgi/l/email-protection#c0868f898180b3b3b3eea7afb6"><span class="__cf_email__" data-cfemail="64222b2d25241717174a030b12">[email protected]</span></a>.
    (c) Mail: SSS, ATTN: Freedom of Information Act Officer, 1501 
Wilson Boulevard, Suite 700, Arlington, VA 22209.


Sec.  1662.8.  Requests not processed under the FOIA.

    (a) The Chief FOIA Officer will not process a request under the 
FOIA and the regulations in this part to the extent it asks for records 
that are currently publicly available, either from SSS or from another 
part of the Federal Government, unless the requester does not have 
access to the internet and cannot retrieve records online. See Sec.  
1662.26.
    (b) The Chief FOIA Officer will not process a request under the 
FOIA and the regulations in this part if the records sought are 
distributed by the Agency as part of its regular program activity, for 
example, public information leaflets distributed by SSS. See Sec. Sec.  
1662.26 through 1662.28.
    (c) The Chief FOIA Officer will not process a request under the 
FOIA that does not meet the requirements of a FOIA request as defined 
in Sec.  1662.21. When a request under FOIA does not meet the 
requirements of Sec.  1662.21, the Chief FOIA Officer will send written 
correspondence to the requester:
    (1) Providing instructions for how to submit a proper FOIA request; 
or
    (2) Asking for additional information to make the request a proper 
FOIA request.


Sec.  1662.9.  Chief FOIA Officer's authority.

    (a) Release determination. The Chief FOIA Officer is authorized to 
make determinations about:
    (1) Release or withholding of records;
    (2) Expedited processing;
    (3) Charging or waiver of fees; and
    (4) Other matters relating to processing a request for records 
under this part.
    (b) Determination provided in writing. The Chief FOIA Officer's 
determination is provided in writing to the requester via emailed 
communication or, in the absence of the requester's email address, via 
U.S. postal mail. If the requester disagrees with the FOIA Officer's 
determination in response to items identified in paragraph (a) of this 
section, the requester may appeal the determination to the Director of 
Selective Service, as described in Sec.  1662.16.


Sec.  1662.10.  Responsibility for responding to requests

    (a) In general. When the Chief FOIA Officer first receives a 
request for a record and SSS maintains that record, it is the 
responsibility of SSS to respond to the request. In determining which 
records are responsive to a request, SSS ordinarily will include only 
records in its possession as of the date that it begins its search. If 
any other date is used, SSS will inform the requester of that date. A 
record that is excluded from the requirements of the FOIA pursuant to 5 
U.S.C. 552(c), is not considered responsive to a request.
    (b) Authority to grant or deny requests. The Chief FOIA Officer is

[[Page 8120]]

authorized to grant or to deny any requests for records that are 
maintained by SSS. Denials may be appealed to the Director of the 
Selective Service.
    (c) Consultation, referral, and coordination. When reviewing 
records located by SSS in response to a request, the Chief FOIA Officer 
will determine whether another agency of the Federal Government is 
better able to determine whether the record is exempt from disclosure 
under the FOIA. As to any such record, the Agency must proceed in one 
of the following ways:
    (1) Consultation. When records originated with SSS but contain 
within them information of interest to another agency or other Federal 
Government office, SSS will consult with that other entity prior to 
making a release determination.
    (2) Referral. (i) When the Chief FOIA Officer believes that a 
different agency or component is best able to determine whether to 
disclose the record, the Chief FOIA Officer will refer the 
responsibility for responding to the request regarding that record to 
that agency. Ordinarily, the agency that originated the record is 
presumed to be the best agency to make the disclosure determination. 
However, if the Chief FOIA Officer and the originating agency jointly 
agree that SSS is in the best position to respond regarding the record, 
then the record may be handled as a consultation.
    (ii) Whenever the Chief FOIA Officer refers any part of the 
responsibility for responding to a request to another agency, it will 
document the referral, maintain a copy of the record that it refers, 
and notify the requester of the referral, informing the requester of 
the name(s) of the agency to which the record was referred, including 
that Agency's FOIA contact information.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the agency to which the 
referral would be made could harm an interest protected by an 
applicable exemption, such as the exemptions that protect personal 
privacy or national security interests. For example, if a non-law 
enforcement agency responding to a request for records on a living 
third party locates within its file's records originating with a law 
enforcement agency, and if the existence of that law enforcement 
interest in the third party was not publicly known, then to disclose 
that law enforcement interest could cause an unwarranted invasion of 
the personal privacy of the third party. Similarly, if the Chief FOIA 
Officer locates within its files material originating from an 
Intelligence Community agency, and the involvement of that agency in 
the matter is classified and not publicly acknowledged, then to 
disclose or give attribution to the involvement of that Intelligence 
Community agency could cause national security harms. In such 
instances, in order to avoid harm to an interest protected by an 
applicable exemption, the Chief FOIA Officer will coordinate with the 
originating agency to seek its views on whether the record may be 
disclosed. The release determination for the record that is the subject 
of the coordination will then be conveyed to the requester by the Chief 
FOIA Officer.
    (d) Classified information. On receipt of any request involving 
classified information, the Chief FOIA Officer must determine whether 
the information is currently and properly classified in accordance with 
applicable classification rules. Whenever a request involves a record 
containing information that has been classified or may be appropriate 
for classification by another agency under any applicable executive 
order concerning the classification of records, the Chief FOIA Officer 
will refer the responsibility for responding to the request regarding 
that information to the agency that classified the information, or that 
should consider the information for classification. Whenever the record 
of SSS contains information that has been derivatively classified (for 
example, when it contains information classified by another agency), 
the Chief FOIA Officer will refer the responsibility for responding to 
that portion of the request to the agency that classified the 
underlying information.
    (e) Timing of responses to consultations and referrals. All 
consultations and referrals received by the Chief FOIA Officer will be 
handled according to the date that SSS received the perfected FOIA 
request.
    (f) Agreements regarding consultations and referrals. The Chief 
FOIA Officer may establish agreements with other agencies to eliminate 
the need for consultations or referrals with respect to particular 
types of records.


Sec.  1662.11.  How does SSS process FOIA requests?

    (a) Acknowledgement. (1) The Chief FOIA Officer acknowledges all 
FOIA requests in writing within ten business days after the Agency's 
receipt of the request. The acknowledgement email or letter restates 
the FOIA request and provides the requester with the request's tracking 
number.
    (2) If the Chief FOIA Officer requires clarification to process the 
FOIA request, the Chief FOIA Officer will contact the requester either 
via email, U.S. postal mail, or phone call. The Chief FOIA Officer will 
attempt to contact requesters twice. If the Chief FOIA Officer does not 
receive a response to their clarification attempts within 30 calendar 
days from the date of the first contact to the requester, the Chief 
FOIA Officer will close the FOIA request due to insufficient 
information.
    (b) Perfected requests. FOIA requests are considered ``perfected,'' 
i.e., the 20-business day statutory time begins, when the request meets 
the requirements of the proper FOIA request listed in Sec.  1662.6. 
There may be times that the Chief FOIA Officer requires more 
information from the requester after perfecting a request. The 20-
business day period may be extended in unusual circumstances by written 
notice to the requester. See paragraph (e) of this section.
    (c) Expedited processing. Unless granted expedited processing, the 
Chief FOIA Officer processes FOIA requests according to a first-in, 
first-out basis. See Sec.  1662.12 for information on expedited 
processing.
    (d) Multi-tracking procedures. FOIA requests are categorized as 
either simple or complex, depending on the nature of the request and 
the estimated processing time:
    (1) Simple. For most non-expedited requests, the Chief FOIA Officer 
makes a determination about release of the record(s) requested within 
20 business days.
    (2) Complex. The Chief FOIA Officer will place into a complex 
processing queue any request that cannot be completed within 20 
business days due to unusual circumstances. The Chief FOIA Officer 
notifies requesters in writing if it is necessary for SSS to take 
additional time to process a request and of the requester's right to 
seek dispute resolution services with the OGIS. See Sec.  1662.15.
    (e) Unusual circumstances. (1) Unusual circumstances exist when 
there is a need to:
    (i) Search for and collect records from SSS components or locations 
that are separate from National Headquarters;
    (ii) Search for, collect, and review a voluminous number of records 
that are part of a single request; and/or
    (iii) Consult with two or more SSS components or another agency 
having substantial interest in the request before releasing the 
records.
    (2) Within the unusual circumstances letter to the requester, the 
Chief FOIA Officer will provide an estimated date that they will 
contact the requester with the applicable fee notice and/or further 
correspondence. The Chief FOIA Officer

[[Page 8121]]

will also advise the requester that they may modify or narrow the scope 
of their request.
    (f) Fee notice. FOIA requesters are issued a fee notice from the 
Chief FOIA Officer that informs them of the estimated search and review 
time associated with processing their FOIA request. For more 
information on fees, see Sec.  1662.13.
    (g) Tolling. (1) The Chief FOIA Officer may stop or toll the 20 
business days in two circumstances:
    (i) The Chief FOIA Officer may stop the clock one time if they 
require additional information regarding the specifics of the request; 
and
    (ii) The Chief FOIA Officer may stop the clock as many times as 
needed regarding fee assessments.
    (2) The processing time will resume upon the Chief FOIA Officer's 
receipt of the requester's response. There may be instances when the 
Chief FOIA Officer requires multiple clarifications on a FOIA request. 
After the first request for clarification, any additional 
clarifications are performed without tolling the clock. Should the 
requester not respond to any correspondence wherein the Chief FOIA 
Officer requests clarification, or should the correspondence be 
returned as undeliverable, the Agency reserves the right to 
administratively close the FOIA request if the Chief FOIA Officer does 
not receive a response within 30 business days of the date of their 
correspondence requesting clarification.
    (h) Retrieving records. The Agency is required to furnish copies of 
records only when they are in the Agency's possession or SSS can 
retrieve them from storage. The Federal government follows National 
Archives and Records Administration (NARA) rules on record retention. 
Records are retained or destroyed under the guidelines of the Federal 
Records Act.
    (i) Unproductive searches. SSS will search for records to satisfy a 
request using methods that can be reasonably expected to produce the 
requested records. Nevertheless, the Agency may not be able to find the 
records requested using the information provided by the requester, or 
they may not exist. If the Chief FOIA Officer advises that SSS is 
unable to find the records despite a diligent search, the requester may 
appeal the no records determination to the Director of Selective 
Service, as described in Sec.  1662.16.
    (j) Furnishing records. The Chief FOIA Officer will provide the 
requester with the record(s) requested unless disclosure would harm an 
interest protected by a FOIA exemption or disclosure is prohibited by 
law. When information within a responsive record(s) is exempt from 
disclosure, the information is redacted and the applicable FOIA 
exemption(s) are noted within the redacted cell. The Chief FOIA Officer 
will make reasonable efforts to provide the records in the form or 
format requested if the record is readily reproducible in that form or 
format. The Chief FOIA Officer may provide individual records as the 
Agency processes them on a rolling basis, or the Chief FOIA Officer may 
release all responsive records once the request is completed. See Sec.  
1662.14 for more information on the release of records by SSS.


Sec.  1662.12.  Expedited processing.

    (a) Expedited processing must be requested at the same time as the 
FOIA request. The Chief FOIA Officer provides expedited processing when 
the requester can demonstrate a ``compelling need'' for the requested 
information, such as:
    (1) When there is an imminent threat to the life or safety of a 
person;
    (2) When the request is from the media, or others primarily engaged 
in disseminating information, and shows an immediate urgency to inform 
the public about actual or alleged government activities; or
    (3) When the requester can show, in detail and to the Chief FOIA 
Officer's satisfaction, that a prompt response is needed because the 
requester may be denied a legal right, benefit, or remedy without the 
requested information, and that it cannot be obtained elsewhere in a 
reasonable amount of time.
    (b) Only the Chief FOIA Officer may make the decision to grant or 
deny expedited processing. Requests that do not meet the ``compelling 
need'' criteria will be processed normally. If the Chief FOIA Officer 
does not grant the request for expedited processing, the requester may 
appeal the denial to the Director of Selective Service. In the appeal 
letter, the requester should explain why they believe their request 
demonstrates a ``compelling need,'' such as describing how the request 
meets the criteria in paragraphs (a)(1) through (3) of this section. 
The process described in Sec.  1662.16 will apply to these appeals.


Sec.  1662.13.  Fees associated with processing FOIA requests.

    (a) Charging fees. In responding to FOIA requests, the Chief FOIA 
Officer shall charge the following fees unless a waiver or reduction of 
fees has been granted under paragraph (i) of this section. Because the 
fee amounts provided below already account for the direct costs 
associated with a given fee type, the Chief FOIA Officer should not add 
any additional costs to charges calculated under this section.
    (1) Search. (i) Requests made by educational institutions, non-
commercial scientific institutions, or representatives of the news 
media are not subject to search fees. Search fees shall be charged for 
all other requesters, subject to the restrictions of paragraph (b) of 
this section. The Chief FOIA Officer may properly charge for time spent 
searching even if the Agency does not locate any responsive records or 
if the Chief FOIA Officer determines that the records are entirely 
exempt from disclosure.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require 
new programming, the fees shall be as follows: professional--$10.00; 
and clerical/administrative--$4.75.
    (iii) Requesters shall be charged the direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. Requesters shall be notified 
by the Chief FOIA Officer of the costs associated with creating such a 
program and must agree to pay the associated costs before the costs may 
be incurred.
    (iv) For requests that require the retrieval of records stored by 
the Agency at a Federal records center operated by NARA, additional 
costs shall be charged in accordance with the Transactional Billing 
Rate Schedule established by NARA.
    (2) Duplication. Duplication fees shall be charged to all 
requesters, subject to the restrictions of paragraph (b) of this 
section. The Chief FOIA Officer shall honor a requester's preference 
for receiving a record in a particular form or format where it is 
readily reproducible in the form or format requested. Where photocopies 
are supplied, the Chief FOIA Officer shall provide one copy per request 
at a cost of five cents per page. For copies of records produced on 
tapes, disks, or other media, components shall charge the direct costs 
of producing the copy, including operator time. Where paper documents 
must be scanned to comply with a requester's preference to receive the 
records in an electronic format, the requester shall pay the direct 
costs associated with scanning those materials. For other forms of 
duplication, the Chief FOIA Officer shall charge the direct costs.
    (3) Review. Review fees shall be charged to requesters who make 
commercial use requests. Review fees shall be assessed in connection 
with the

[[Page 8122]]

initial review of the record, i.e., the review conducted by the Chief 
FOIA Officer to determine whether an exemption applies to a particular 
record or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if a particular exemption is deemed to no longer apply, 
any costs associated with the Agency's re-review of the records in 
order to consider the use of other exemptions may be assessed as review 
fees. Review fees shall be charged at the same rates as those charged 
for a search under paragraph (a)(1)(ii) of this section.
    (b) Restrictions on charging fees. (1) No search fees will be 
charged for requests by educational institutions (unless the records 
are sought for commercial use), non-commercial scientific institutions, 
or representatives of the news media.
    (2) If the Agency fails to comply with the FOIA's time limits in 
which to respond to a request, the Chief FOIA Officer may not charge 
search fees, or, in the instances of requests from requesters described 
in paragraph (b)(1) of this section, may not charge duplication fees, 
except as described in paragraphs (b)(2)(i) through (iii) of this 
section.
    (i) If the Chief FOIA Officer has determined that unusual 
circumstances as defined by the FOIA apply and they provided timely 
written notice to the requester in accordance with the FOIA, a failure 
to comply with the time limit shall be excused for an additional 10 
days.
    (ii) If the Chief FOIA Officer has determined that unusual 
circumstances as defined by the FOIA apply, and more than 5,000 pages 
are necessary to respond to the request, the Chief FOIA Officer may 
charge search fees, or, in the case of requesters described in 
paragraph (b)(1) of this section, may charge duplication fees if the 
following steps are taken. The Chief FOIA Officer must have provided 
timely written notice of unusual circumstances to the requester in 
accordance with the FOIA and the Chief FOIA Officer must have discussed 
with the requester via written mail, email, or telephone (or made not 
less than three good faith attempts to do so) how the requester could 
effectively limit the scope of the request in accordance with 5 U.S.C. 
552(a)(6)(B)(ii). If this exception is satisfied, the Chief FOIA 
Officer may charge all applicable fees incurred in the processing of 
the request.
    (iii) If a court has determined that exceptional circumstances 
exist as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) Except for requesters seeking records for a commercial use, the 
Chief FOIA Officer shall provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) When, after first deducting the 100 free pages (or its cost 
equivalent) and the first two hours of search, a total fee calculated 
under paragraph (a) of this section is $25.00 or less for any request, 
no fee will be charged.
    (c) Notice of anticipated fees in excess of $25.00. (1) When the 
Chief FOIA Officer determines or estimates that the fees to be assessed 
in accordance with this section will exceed $25.00, the Chief FOIA 
Officer shall notify the requester of the actual or estimated amount of 
the fees, including a breakdown of the fees for search, review, or 
duplication, unless the requester has indicated a willingness to pay 
fees as high as those anticipated. If only a portion of the fee can be 
estimated readily, the Chief FOIA Officer shall advise the requester 
accordingly. If the requester is a non-commercial use requester, the 
notice shall specify that the requester is entitled to the statutory 
entitlements of 100 pages of duplication at no charge and, if the 
requester is charged search fees, two hours of search time at no 
charge, and shall advise the requester whether those entitlements have 
been provided.
    (2) In cases in which a requester has been notified that the actual 
or estimated fees are in excess of $25.00, the request shall not be 
considered received and further work will not be completed until the 
requester commits in writing to pay the actual or estimated total fee, 
or designates some amount of fees the requester is willing to pay, or 
in the case of a non-commercial use requester who has not yet been 
provided with the requester's statutory entitlements, designates that 
the requester seeks only that which can be provided by the statutory 
entitlements. The requester must provide the commitment or designation 
in writing to the Chief FOIA Officer, and must, when applicable, 
designate an exact dollar amount the requester is willing to pay. The 
Agency is not required to accept payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the Chief FOIA Officer estimates that 
the total fee will exceed that amount, they shall toll the processing 
of the request when they notify the requester of the estimated fees 
more than the amount the requester has indicated a willingness to pay. 
The Chief FOIA Officer shall inquire whether the requester wishes to 
revise the amount of fees the requester is willing to pay or modify the 
request. Once the requester responds, the time to respond will resume 
from where it was at the date of the notification.
    (4) The Agency shall make available the FOIA Public Liaison or 
other FOIA professional to assist any requester in reformulating a 
request to meet the requester's needs at a lower cost.
    (d) Charges for other services. Although not required to provide 
special services, if the Chief FOIA Officer chooses to do so as a 
matter of administrative discretion, the direct costs of providing the 
service shall be charged. Examples of such services include certifying 
that records are true copies, providing multiple copies of the same 
document, or sending records by means other than first class mail.
    (e) Charging interest. The Chief FOIA Officer may charge interest 
on any unpaid bill starting on the 31st day following the date of 
billing the requester. Interest charges shall be assessed at the rate 
provided in 31 U.S.C. 3717 and will accrue from the billing date until 
payment is received by the Chief FOIA Officer. The Chief FOIA Officer 
shall follow the provisions of the Debt Collection Act of 1982 (Pub. L. 
97-365, 96 Stat. 1749), as amended, and its administrative procedures, 
including the use of consumer reporting agencies, collection agencies, 
and offset.
    (f) Aggregating requests. When the Chief FOIA Officer reasonably 
believes that a requester or a group of requesters acting in concert is 
attempting to divide a single request into a series of requests for the 
purpose of avoiding fees, the Chief FOIA Officer may aggregate those 
requests and charge accordingly. The Chief FOIA Officer may presume 
that multiple requests of this type made within a 30-day period have 
been made to avoid fees. For requests separated by a longer period, the 
Chief FOIA Officer will aggregate them only where there is a reasonable 
basis for determining that aggregation is warranted in view of all the 
circumstances involved. Multiple requests involving unrelated matters 
shall not be aggregated.
    (g) Advance payments. (1) For requests other than those described 
in paragraph (g)(2) or (g)(3) of this section, the Chief FOIA Officer 
shall not require the requester to make an advance

[[Page 8123]]

payment before work on a request is commenced or continued. Payment 
owed for work already completed (i.e., payment before copies are sent 
to a requester) is not an advance payment.
    (2) When the Chief FOIA Officer determines or estimates that a 
total fee to be charged under this section will exceed $250.00, they 
may require that the requester make an advance payment up to the amount 
of the entire anticipated fee before beginning to process the request. 
The Chief FOIA Officer may elect to process the request prior to 
collecting fees when they receive a satisfactory assurance of full 
payment from a requester with a history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to the Agency within 30 calendar days of the billing 
date, the Chief FOIA Officer may require that the requester pay the 
full amount due, plus any applicable interest on that prior request, 
and the Chief FOIA Officer may require that the requester make an 
advance payment of the full amount of any anticipated fee before the 
FOIA Officer begins to process a new request or continues to process a 
pending request or any pending appeal. Where the Chief FOIA Officer has 
a reasonable basis to believe that a requester has misrepresented the 
requester's identity to avoid paying outstanding fees, it may require 
that the requester provide proof of identity.
    (4) In cases in which the Chief FOIA Officer requires advance 
payment, the request shall not be considered received and further work 
will not be completed until the required payment is received. If the 
requester does not pay the advance payment within 30 calendar days 
after the date of the Chief FOIA Officer's fee determination, the 
request will be closed.
    (h) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. In instances where records responsive 
to a request are subject to a statutorily based fee schedule program, 
the Chief FOIA Officer shall inform the requester of the contact 
information for that program.
    (i) Requirements for waiver or reduction of fees. (1) Requesters 
may seek a waiver of fees by submitting a written application 
demonstrating how disclosure of the requested information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the requester.
    (2) The Chief FOIA Officer must furnish records responsive to a 
request without charge or at a reduced rate when they determine, based 
on all available information, that disclosure of the requested 
information is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or 
activities of the government and is not primarily in the commercial 
interest of the requester. In deciding whether this standard is 
satisfied the component must consider the factors described in 
paragraphs (i)(2)(i) through (iii) of this section:
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the government. The subject of the request 
must concern identifiable operations or activities of the Federal 
government with a connection that is direct and clear, not remote or 
attenuated.
    (ii) Disclosure of the requested information would be likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure 
of information that already is in the public domain, in either the same 
or a substantially identical form, would not be meaningfully 
informative if nothing new would be added to the public's 
understanding.
    (B) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public must be 
considered. The Chief FOIA Officer will presume that a representative 
of the news media will satisfy this consideration.
    (iii) The disclosure must not be primarily in the commercial 
interest of the requester. To determine whether disclosure of the 
requested information is primarily in the commercial interest of the 
requester, the Chief FOIA Officer will consider the following criteria:
    (A) Whether the requester has any commercial interest that would be 
furthered by the requested disclosure. A commercial interest includes 
any commercial, trade, or profit interest. Requesters must be given an 
opportunity to provide explanatory information regarding this 
consideration.
    (B) If there is an identified commercial interest, the Chief FOIA 
Officer must determine whether that is the primary interest furthered 
by the request. A waiver or reduction of fees is justified when the 
requirements of paragraphs (i)(2)(i) and (ii) of this section are 
satisfied and any commercial interest is not the primary interest 
furthered by the request. The Chief FOIA Officer ordinarily will 
presume that when a news media requester has satisfied the requirements 
of paragraphs (i)(2)(i) and (ii) of this section, the request is not 
primarily in the commercial interest of the requester. Disclosure to 
data brokers or others who merely compile and market government 
information for direct economic return will not be presumed to 
primarily serve the public interest.
    (3) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (4) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the Chief FOIA Officer and should 
address the criteria referenced above. A requester may submit a fee 
waiver request later so long as the underlying record request is 
pending or on administrative appeal. When a requester who has committed 
to pay fees subsequently asks for a waiver of those fees and that 
waiver is denied, the requester shall be required to pay any costs 
incurred up to the date the fee waiver request was received.


Sec.  1662.14.  Release of records.

    (a) Records previously released. If the Agency has released a 
record, or a part of a record, to others in the past, the Chief FOIA 
Officer will ordinarily release it to the requester, as well. However, 
the Chief FOIA Officer will not release it to a requester if a statute 
forbids this disclosure; an exemption applies that was not previously 
applicable; or if the previous release was unauthorized.
    (b) Withholding records. Section 552(b) of the FOIA explains the 
nine exemptions under which the Chief FOIA Officer may withhold records 
requested under the FOIA. Within Sec. Sec.  1662.18 through 1662.25, 
the Agency describes the FOIA exemptions and explain how the Chief FOIA 
Officer applies them to disclosure determinations. In some cases, more 
than one exemption may apply to the same document. Section 552(b) of 
the FOIA, while providing nine exemptions from mandatory disclosure, 
does not

[[Page 8124]]

itself provide any assurance of confidentiality by the Agency.
    (c) Reading room. If the record(s) requested are already publicly 
available, either in the SSS electronic reading room or elsewhere 
online, such as at www.sss.gov, SSS will direct the requester to the 
publicly available record(s), unless the requester does not have access 
to the internet.
    (d) Poor copy. If the Chief FOIA Officer cannot make a legible copy 
of a record to be released, they do not attempt to reconstruct it. 
Instead, the Chief FOIA Officer will furnish the best copy possible and 
note its poor quality in their reply.


Sec.  1662.15.  FOIA Public Liaison and the Office of Government 
Information Services.

    The Chief FOIA Officer notifies requesters of their right to seek 
dispute resolution from the FOIA Public Liaison or OGIS within the SSS 
fee notices, responses to determinations identified in Sec.  1662.9(a), 
and responses to appeals.
    (a) FOIA Public Liaison. If requesters have questions about the 
response to their request or wish to seek dispute resolutions services 
within SSS, the requester may contact the FOIA Public Liaison via email 
to <a href="/cdn-cgi/l/email-protection#8ccac3c5cda2dcf9eee0e5efa2c0e5ede5ffe3e2ccffffffa2ebe3fa"><span class="__cf_email__" data-cfemail="fdbbb2b4bcd3ad889f91949ed3b1949c948e9293bd8e8e8ed39a928b">[email protected]</span></a>.
    (b) OGIS. OGIS is an entity outside of SSS that offers mediation 
services to resolve disputes between FOIA requesters and Federal 
agencies as a non-exclusive alternative to litigation. OGIS' contact 
information will be provided in any decision letter issued by the Chief 
FOIA Officer and Director of Selective Service.


Sec.  1662.16.  Appeals of the Chief FOIA Officer's determination.

    (a) Appeal requirements. If a requester disagrees with the Chief 
FOIA Officer's determination in response to items specified in Sec.  
1662.9, the requester may appeal the decision to the Director of 
Selective Service. The appeal must meet the following requirements:
    (1) Be submitted in writing via the avenues identified in Sec.  
1662.7;
    (2) Be received within 90 days from the date of the determination 
the requester is appealing; and
    (3) Explain what the requester is appealing and include additional 
information to support the appeal.
    (b) Acknowledgement. The Director of Selective Service acknowledges 
all appeals in writing within 10 business days after their receipt of 
the appeal. The acknowledgement is provided via email or, when the 
requester does not provide an email address, via U.S. postal mail. The 
acknowledgement email or letter restates the FOIA appeal and provides 
the requester with the appeal's tracking number.
    (c) Processing timeframe. FOIA appeals are categorized as either 
simple or complex, based on the designation of the initial request.
    (1) Simple. Generally, the Director of Selective Service makes a 
determination about release of the requested record(s) within 20 
business days.
    (2) Complex. Appeals of complex requests cannot be completed within 
20 business days due to unusual circumstances. During the Director of 
Selective Service's processing of the appeal, they will need to consult 
with appropriate SSS component(s), including legal counsel; therefore, 
the Director of Selective Service generally requires more than 20 
business days to issue a final decision on the appeal.
    (d) Final decision. The Director of Selective Service makes 
decisions on appeals of the Chief FOIA Officer's determinations.
    (1) The Director of Selective Service's final decision is provided 
in writing to the requester via email or, in the absence of the 
requester's email address, via U.S. postal mail.
    (2) The final decision letter will explain the basis of the 
decision (for example, the reasons why an exemption applies).
    (e) Disagreement with final decision. If a requester disagrees with 
the final decision issued by the Director of Selective Service, they 
may seek assistance from OGIS, as described in Sec.  1662.15. 
Requesters may also ask a U.S. District Court to review the Director of 
Selective Service's final decision. See 5 U.S.C. 552(a)(4)(B).


Sec.  1662.17.  U.S. District Court action.

    If the Director of Selective Service, upon review, affirms the 
denial of the Chief FOIA Officer's determination of items specified in 
Sec.  1662.9(a), requesters may ask a U.S. District Court to review 
that denial. See 5 U.S.C. 552(a)(4)(B).


Sec.  1662.18.  The FOIA Exemption 1: National defense and foreign 
policy.

    The FOIA exempts from disclosure records that are specifically 
authorized under criteria established by an executive order to be kept 
secret in the interest of national defense or foreign policy and are in 
fact properly classified pursuant to such executive order.


Sec.  1662.19.  The FOIA Exemption 2: Internal personnel rules and 
practices.

    The FOIA exempts from disclosure records that are related solely to 
the internal personnel rules and practices of an agency.


Sec.  1662.20.  The FOIA Exemption 3: Records exempted by other 
statutes.

    The FOIA exempts from disclosure records if another statute 
specifically allows or requires the agency to withhold them. The Chief 
FOIA Officer may use another statute to justify withholding only if it 
prohibits disclosure; it sets forth criteria to guide the Chief FOIA 
Officer's decision on releasing; or identifies types of material to be 
withheld.


Sec.  1662.21.  The FOIA Exemption 4: Trade secrets and confidential 
commercial or financial information.

    The FOIA exempts from disclosure trade secrets as well as 
commercial or financial information that is obtained from a person that 
is either privileged or confidential. SSS will allow submitters to 
designate information as trade secrets and confidential commercial or 
financial information at the time of submission or within a reasonable 
time thereafter. Submitters must use good faith efforts to designate, 
by appropriate markings, any portion of its submission that it 
considers to be protected from disclosure under the FOIA exemptions. 
These designations expire ten years after the due date of the 
submission unless the submitter requests a longer designation period.
    (a) Steps of submitters notice--(1) The submitter's notice. When 
trade secrets or confidential commercial or financial information is 
requested under the FOIA, the Chief FOIA Officer will provide written 
submitter's notice if they have substantial reason to believe that 
information in the records could reasonably be considered exempt under 
the FOIA Exemption 4. The submitter's notice will describe and include 
a copy of the trade secret, or commercial or financial information 
requested. In cases involving many submitters, SSS may publish a 
submitter's notice to inform the submitters of the proposed disclosure 
instead of sending individual notifications. The submitter's notice 
requirements of this section do not apply if:
    (i) The Chief FOIA Officer determines the information is fully 
exempt under the FOIA, and therefore will not be disclosed;
    (ii) The information has been previously published or made 
generally available; or
    (iii) Disclosure of the information is required by statute other 
than the FOIA.
    (2) Submitter's opportunity to object to disclosure. (i) The 
submitter must respond to the notice within five business days of the 
Chief FOIA Officer issuing the submitter's notice or the information 
may be released in

[[Page 8125]]

accordance with these regulations and the FOIA. A submitter who fails 
to respond within five business days will be considered to have no 
objection to the disclosure of the information. The Chief FOIA Officer 
is not required to consider any information received after the date of 
any disclosure decision. Any information provided by a submitter under 
this subpart may itself be subject to disclosure under the FOIA.
    (ii) If a submitter objects to disclosure, the submitter should 
provide the Chief FOIA Officer with a detailed written statement that 
specifies all grounds for withholding the particular information under 
any exemption of the FOIA. To rely on Exemption 4 as basis for 
nondisclosure, the submitter must explain why the information 
constitutes a trade secret or commercial or financial information that 
is confidential.
    (iii) The Chief FOIA Officer will consider a submitter's timely 
made objections and specific grounds for nondisclosure in deciding 
whether to disclose the requested information.
    (3) Notice of intent to disclose. Whenever the Chief FOIA Officer 
decides to disclose information over the objection of a submitter, they 
must provide the following to the submitter:
    (i) A Release Over Objection letter explaining the reasons why each 
of the submitter's disclosure objections did not meet the requirements 
for withholding under the FOIA;
    (ii) A copy of the information as SSS intends to release it; and
    (iii) A statement of the Chief FOIA Officer's intent to disclose 
the information five business days from the date on the Release Over 
Objection letter unless the submitter files an action in a U.S. 
District Court to prevent the release.
    (b) Notice of FOIA lawsuit. When a submitter's notice is issued for 
a request that is the subject of a lawsuit, the Chief FOIA Officer 
shall notify the submitter of the lawsuit within the notice.
    (c) Requester notification. To the extent the Chief FOIA Officer 
expects substantial delays in the processing of FOIA requests due to 
the Agency's communications with the submitter, they will notify the 
requester in writing via email, or when the requester's email is not 
provided, via U.S. postal mail.


Sec.  1662.22.  The FOIA Exemption 5: Internal documents.

    This exemption covers inter-agency or intra-agency government 
documents that fall within an evidentiary privilege recognized in civil 
discovery. Such internal government communications include an agency's 
communications with an outside consultant or other outside person, with 
a court, or with Congress, when those communications are for a purpose 
similar to the purpose of privileged intra-agency communications. Some 
of the most commonly applicable privileges are described in the 
following paragraphs:
    (a) Deliberative process privilege. This privilege protects the 
decision-making processes of government agencies. Information is 
protected under this privilege if it is pre-decisional and 
deliberative. The purpose of the privilege is to prevent injury to the 
quality of the agency decision-making process by encouraging open and 
frank internal discussions, by avoiding premature disclosure of 
decisions not yet adopted, and by avoiding the public confusion that 
might result from disclosing reasons that were not in fact the ultimate 
grounds for an agency's decision. Purely factual material in a 
deliberative document is within this privilege only if it is 
inextricably intertwined with the deliberative portions so that it 
cannot reasonably be segregated, if it would reveal the nature of the 
deliberative portions, or if its disclosure would in some other way 
make possible an intrusion into the decision-making process. The 
privilege continues to protect pre-decisional documents even after a 
decision is made; however, the Chief FOIA Officer will release pre-
decisional deliberative communications that were created 25 years or 
more before the date on which the records are requested, unless 
disclosure is otherwise prohibited by law.
    (b) Attorney work product privilege. This privilege protects 
records prepared by or for an attorney in anticipation of or for 
litigation. It includes documents prepared for purposes of 
administrative and court proceedings. This privilege extends to 
information directly prepared by an attorney, as well as materials 
prepared by non-attorneys working for an attorney.
    (c) Attorney-client communication privilege. This privilege 
protects confidential communications between an attorney and the 
attorney's client where legal advice is sought or provided.


Sec.  1662.23.  The FOIA Exemption 6: Clearly unwarranted invasion of 
personal privacy.

    The FOIA exempts from disclosure records about individuals if 
disclosure would constitute a clearly unwarranted invasion of their 
personal privacy.
    (a) Balancing test. When the Chief FOIA Officer decides whether to 
release records that contain personal or private information about 
someone else, they weigh the foreseeable harm of invading a person's 
privacy against the public interest in disclosure. When the Chief FOIA 
Officer determines whether disclosure would be in the public interest, 
they will consider whether disclosure of the requested information 
would shed light on how a government agency performs its statutory 
duties.
    (b) Agency employees. To protect the safety of Agency employees, 
the Chief FOIA Officer will not disclose information when the 
information sought is contact information and/or duty stations of one 
or more Federal employees if the disclosure would place employee(s) at 
risk of injury or other harm.


Sec.  1662.24.  The FOIA Exemption 7: Law enforcement.

    The FOIA exempts from disclosure information or records that the 
government has compiled for law enforcement purposes. The records may 
apply to actual or potential violations of either criminal or civil 
laws or regulations. The Agency can withhold these records only to the 
extent that releasing them would cause harm in at least one of the 
following situations:
    (a) Enforcement proceedings. Pursuant to the FOIA Exemption 7(A) (5 
U.S.C. 552(b)(7)(a)), the Chief FOIA Officer may withhold information 
whose release could reasonably be expected to interfere with 
prospective or ongoing law enforcement proceedings. Investigations of 
fraud and mismanagement, employee misconduct, and civil rights 
violations may fall into this category.
    (b) Fair trial or impartial adjudication. Under the FOIA Exemption 
7(B) (5 U.S.C. 552(b)(7)(b)), the FOIA exempts from disclosure records 
whose release would deprive a person of a fair trial or an impartial 
adjudication because of prejudicial publicity.
    (c) Personal privacy. Under the FOIA Exemption 7(C) (5 U.S.C. 
552(b)(7)(c)), the FOIA exempts from disclosure personally identifiable 
information of individuals when the disclosure could reasonably be 
expected to constitute an unwarranted invasion of personal privacy.
    (d) Confidential sources and information. Pursuant to the FOIA 
Exemption 7(D) (5 U.S.C. 552(b)(7)(d)), the FOIA exempts from 
disclosure the identity of confidential sources, as well as the records 
obtained from the confidential sources in criminal investigations or by 
an agency conducting a lawful national security investigation. A 
confidential source may be an individual; a state, local, or foreign 
government agency; or any

[[Page 8126]]

private organization. The exemption applies whether the source provides 
information under an express promise of confidentiality or under 
circumstances from which such an assurance could be reasonably 
inferred; however, inferred confidentiality is determined in a case-by-
case analysis. Also protected from mandatory disclosure is any 
information which, if disclosed, could reasonably be expected to 
jeopardize the system of confidentiality that assures a flow of 
information from sources to investigatory agencies.
    (e) Techniques and procedures. Under the FOIA Exemption 7(E) (5 
U.S.C. 552(b)(7)(e)), the FOIA exempts from disclosure records 
reflecting special techniques or procedures of investigation or 
prosecution, not otherwise generally known to the public. In some 
cases, it is not possible to describe even in general terms those 
techniques without disclosing the very material to be withheld. The 
Chief FOIA Officer may also withhold records whose release would 
disclose guidelines for law enforcement investigations or prosecutions 
if this disclosure could reasonably be expected to create a risk that 
someone could circumvent requirements of law or of regulation.
    (f) Life and physical safety. Under the FOIA Exemption 7(F) (5 
U.S.C. 552(b)(7)(f)), the Chief FOIA Officer may withhold records whose 
disclosure could reasonably be expected to endanger the life or 
physical safety of any individual. This protection extends to threats 
and harassment, as well as to physical violence.


Sec.  1662.25.  The FOIA Exemptions 8 and 9: Records on financial 
institutions; records on wells.

    Exemption 8 exempts from disclosure records about regulation or 
supervision of financial institutions. Exemption 9 exempts from 
disclosure geological and geophysical information and data, including 
maps, concerning wells.


Sec.  1662.26.  Records available for public inspection.

    Under the FOIA, SSS is required to make available for public 
inspection in an electronic format:
    (a) Final opinions, including concurring and dissenting opinions, 
as well as orders, made in the adjudication of cases;
    (b) The Agency's statements and interpretations of policy that have 
been adopted but are not published in the Federal Register;
    (c) Administrative staff manuals and instructions that affect the 
public; and
    (d) Copies of records, regardless of form or format, that an agency 
determines will likely become the subject of subsequent requests, as 
well as records that have been requested and released three or more 
times, unless said materials are published and copies are offered to 
sale.


Sec.  1662.27.  Where records are published.

    Materials SSS is required to publish pursuant to the provisions of 
5 U.S.C. 552(a)(1) and (a)(2) are published in one of the following 
ways:
    (a) By publication in the Federal Register of Selective Service 
System regulations, and by their subsequent inclusion in the Code of 
Federal Regulations;
    (b) By publication in the Federal Register of appropriate general 
notices; and/or
    (c) By other forms of publication, when incorporated by reference 
in the Federal Register with the approval of the Director of the 
Federal Register.


Sec.  1662.28.  Publications for sale through the Government Publishing 
Office.

    The public may purchase publications containing information 
pertaining to the program, organization, functions, and procedures of 
SSS from the electronic U.S. Government Bookstore maintained by the 
Government Publishing Office. The publications for sale include but are 
not limited to:
    (a) Title 50, Chapter 49, of the United States Code (the Military 
Selective Service Act);
    (b) Title 32, Subtitle B, Chapter XVI, of the Code of Federal 
Regulations (Selective Service System Regulations);
    (c) Federal Register issues; and
    (d) Legal Aspects of the Selective Service System.

Daniel A. Lauretano, Sr.,
General Counsel.
[FR Doc. 2024-02115 Filed 2-5-24; 8:45 am]
BILLING CODE 8015-01-P


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