8112 Federal Register / Vol. 89, No. 25 / Tuesday, February 6, 2024 / Proposed Rules 

1 17 CFR 145.9. 

2Protection of Clearing Member Funds Held by 

Derivatives Clearing Organizations, 89 FR 286 

(January 3, 2024). 

3Letter from Teo Floor, Chief Executive Officer, 

The Global Association of Central Counterparties, 

dated January 11, 2024. Available at https:// 

comments.cftc.gov/PublicComments/ 

ViewComment.aspx?id=73229. The requested 

extension was 30 days. The Commission is 

extending the comment period by 31 days to avoid 

having the extended closing date fall on a weekend. 

extended. Comments are due March 18, 

2024. 

ADDRESSES: You may submit comments, 

identified by RIN number 3038–AF39, 

by any of the following methods: 

• CFTC Comments Portal: https://

comments.cftc.gov. Select the ‘‘Submit 

Comments’’ link for this rulemaking and 

follow the instructions on the Public 

Comment Form. 

• Mail: Send to Christopher 

Kirkpatrick, Secretary of the 

Commission, Commodity Futures 

Trading Commission, Three Lafayette 

Centre, 1155 21st Street NW, 

Washington, DC 20581. 

• Hand Delivery/Courier: Follow the 

same instructions as for Mail, above. 

Please submit your comments using 

only one of these methods. Submissions 

through the CFTC Comments Portal are 

encouraged. 

All comments must be submitted in 

English, or if not, accompanied by an 

English translation. Comments will be 

posted as received to https:// 

comments.cftc.gov. You should submit 

only information that you wish to make 

available publicly. If you wish the 

Commission to consider information 

that you believe is exempt from 

disclosure under the Freedom of 

Information Act (FOIA), a petition for 

confidential treatment of the exempt 

information may be submitted according 

to the procedures established in § 145.9 

of the Commission’s regulations.1

The Commission reserves the right, 

but shall have no obligation, to review, 

pre-screen, filter, redact, refuse, or 

remove any or all of your submission 

from https://comments.cftc.gov that it 

may deem to be inappropriate for 

publication, such as obscene language. 

All submissions that have been redacted 

or removed that contain comments on 

the merits of the rulemaking will be 

retained in the public comment file and 

will be considered as required under the 

Administrative Procedure Act and other 

applicable laws, and may be accessible 

under the FOIA. 

FOR FURTHER INFORMATION CONTACT: 

Eileen A. Donovan, Deputy Director, 

(202) 418–5096, edonovan@cftc.gov; 

August A. Imholtz III, Special Counsel, 

(202) 418–5140, aimholtz@cftc.gov; or 

Gavin Young, Special Counsel, (202) 

418–5976, gyoung@cftc.gov; Division of 

Clearing and Risk, Commodity Futures 

Trading Commission, Three Lafayette 

Centre, 1155 21st Street NW, 

Washington, DC 20581; or Theodore Z. 

Polley III, Associate Director, (312) 596– 

0551, tpolley@cftc.gov; Division of 

Clearing and Risk, Commodity Futures 

Trading Commission, 77 West Jackson 

Boulevard, Suite 800, Chicago, Illinois 

60604. 

SUPPLEMENTARY INFORMATION: On 

January 3, 2024, the Commission 

published in the Federal Register an 

NPRM proposing amendments to its 

regulations that would ensure clearing 

member funds and assets receive the 

proper treatment in the event the 

derivatives clearing organization (DCO) 

enters bankruptcy by requiring, among 

other things, that clearing member funds 

be segregated from the DCO’s own funds 

and held in a depository that 

acknowledges in writing that the funds 

belong to clearing members, not the 

DCO.2 In addition, the Commission also 

proposed to permit DCOs to hold 

customer and clearing member funds at 

foreign central banks subject to certain 

requirements. Finally, the Commission 

proposed to require DCOs to conduct a 

daily calculation and reconciliation of 

the amount of funds owed to customers 

and clearing members and the amount 

actually held for customers and clearing 

members. The comment period for the 

NPRM was to close on February 16, 

2024. In response to a request by 

commenters, the Commission is 

extending the comment period for this 

NPRM by an additional 31 days.3 This 

extension of the comment period will 

allow interested persons additional time 

to analyze the proposal and prepare 

their comments. 

Issued in Washington, DC, on January 31, 

2024, by the Commission. 

Robert Sidman, 

Deputy Secretary of the Commission. 

Note: The following appendix will not 

appear in the Code of Federal Regulations. 

Appendix to Protection of Clearing 

Member Funds Held by Derivatives 

Clearing Organizations—Commission 

Voting Summary 

On this matter, Chairman Behnam and 

Commissioners Johnson, Goldsmith Romero, 

Mersinger, and Pham voted in the 

affirmative. No Commissioner voted in the 

negative. 

[FR Doc. 2024–02234 Filed 2–5–24; 8:45 am] 

BILLING CODE 6351–01–P 

SELECTIVE SERVICE SYSTEM 

32 CFR Part 1662 

RIN 3240–AA03 

Freedom of Information Act 

Regulations 

AGENCY: United States Selective Service 

System. 

ACTION: Proposed rule. 

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 

federalregisterliaison@sss.gov, 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, dlauretano@

sss.gov. 

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 


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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: 

• Sections 1662.1 and 1662.2 

introduce and provide information on 

the services of the FOIA Public Liaison 

and OGIS; 

• 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 

• 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: 

• Sections 1662.1 and 1662.15 

address the FOIA Public Liaison and 

OGIS; 

• Sections 1662.3(a) and 1662.11(k) 

add the foreseeable harm standard; 

• Section 1662.13 clarifies the 

agency’s fee charging rules, including 

when unusual circumstances apply; 

• Section 1662.16 updates the appeal 

timeframe to 90 days (from 30 days); 

• 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 

• 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 § 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 

‘‘§ 1662.1. Applicability of this part’’ to 

‘‘§ 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 ‘‘§ 1662.2. 

Procedure for requesting information’’ 

to ‘‘§ 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 ‘‘§ 1662.3. 

Identification of information requested’’ 

to ‘‘§ 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 ‘‘§ 1662.4. 

Consideration of request for 

information’’ to ‘‘§ 1662.4. Relationship 

between the FOIA and the Privacy Act 

of 1974.’’ This revises and moves 

language from current § 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 ‘‘§ 1662.5. 

Inspection, copying, and obtaining 

copies’’ to ‘‘§ 1662.5. Who can file a 


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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 ‘‘§ 1662.6. Fee 

schedule; waiver of fees’’ to ‘‘§ 1662.6. 

Requirements of a FOIA request.’ ’’ 

Current § 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 ‘‘§ 1662.7. Where to submit a 

FOIA request.’’ Currently § 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 ‘‘§ 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 § 1662.21. The Chief 

FOIA Officer will provide instructions 

and/or request additional information so 

that the request adheres to the 

requirements of proposed § 1662.21. 

32 CFR 1662.9 

This is a new section with the 

heading ‘‘§ 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 § 1662.16. 

32 CFR 1662.10 

This is a new section with the 

heading ‘‘§ 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 ‘‘§ 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 § 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 ‘‘§ 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 § 1662.16. 

32 CFR 1662.13 

This is a new section with the 

heading ‘‘§ 1662.13. Fees associated 

with processing FOIA requests.’’ This 

section revises existing (old) § 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 ‘‘§ 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 ‘‘§ 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 ‘‘§ 1662.16. Appeals of the 

Chief FOIA Officer’s determination.’’ 

The SSS revisions update the 

information located in the existing 

regulation at § 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 ‘‘§ 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 ‘‘§ 1662.18. The FOIA 

Exemption 1: National defense and 


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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 ‘‘§ 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 ‘‘§ 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 ‘‘§ 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 ‘‘§ 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 ‘‘§ 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 ‘‘§ 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 ‘‘§ 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 ‘‘§ 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 ‘‘§ 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 ‘‘§ 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 


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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. 

■ 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. 

§ 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. 

§ 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 


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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 § 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; noncommercial 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 § 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 

FOIA.Public.Liaison@sss.gov. 

FOIA request means a written request 

that meets the criteria in § 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 § 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). 


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§ 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 § 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 § 1662.26. 

(d) Required record production. The 

FOIA does not require an Agency to give 

opinions, conduct research, answer 

questions, or create records. 

§ 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. 

§ 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. 

§ 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 § 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. 

§ 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: FOIA@sss.gov. 

(c) Mail: SSS, ATTN: Freedom of 

Information Act Officer, 1501 Wilson 

Boulevard, Suite 700, Arlington, VA 

22209. 

§ 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 

§ 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 §§ 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 § 1662.21. 

When a request under FOIA does not 

meet the requirements of § 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. 

§ 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 

§ 1662.16. 

§ 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 


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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. 

§ 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 § 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 § 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 

§ 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 


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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 § 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 § 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 § 1662.14 for 

more information on the release of 

records by SSS. 

§ 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 

§ 1662.16 will apply to these appeals. 

§ 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, noncommercial 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 


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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 noncommercial 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 


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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. 

§ 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 

§§ 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 


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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. 

§ 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 § 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 

FOIA.Public.Liaison@sss.gov. 

(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. 

§ 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 § 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 § 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 

§ 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). 

§ 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 § 1662.9(a), requesters 

may ask a U.S. District Court to review 

that denial. See 5 U.S.C. 552(a)(4)(B). 

§ 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. 

§ 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. 

§ 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. 

§ 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 


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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. 

§ 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. 

§ 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. 

§ 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 


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8126 Federal Register / Vol. 89, No. 25 / Tuesday, February 6, 2024 / Proposed Rules 

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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 38 and 39 

RIN 2900–AR82 

Outer Burial Receptacles 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) proposes to revise its 

regulation that governs the outer burial 

receptacle (OBR) monetary allowance 

for burials in a VA national cemetery 

when a privately purchased OBR is used 

in lieu of a Government-furnished 

graveliner. First, VA proposes to expand 

applicability of the monetary allowance 

to burials in VA grant-funded State and 

Tribal cemeteries when a privately 

purchased OBR was used, or where an 

OBR is placed at the time of interment, 

at the cost of the State or Tribal 

Organization. Second, VA proposes to 

reimburse States and Tribal 

Organizations for OBRs that are preplaced as part of a new construction or 

expansion grant project. In addition, VA 

proposes minor conforming revisions to 

its regulations governing aid for the 

establishment, expansion and 

improvement of veterans cemeteries to 

clarify that VA will reimburse the cost 

of preplaced OBRs separately from the 

grant award. These changes would 

implement new authorities provided in 

the Johnny Isakson and David P. Roe, 

M.D Veterans Health Care and Benefits 

Improvement Act of 2020. VA also 

proposes to amend the regulation 

governing OBRs by removing retroactive 

provisions no longer needed because the 

relevant time period has passed. 

DATES: Comments must be received on 

or before April 8, 2024. 

ADDRESSES: Comments must be 

submitted through www.regulations.gov. 

Except as provided below, comments 

received before the close of the 

comment period will be available at 

www.regulations.gov for public viewing, 

inspection, or copying, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post the comments 

received before the close of the 

comment period on the following 

website as soon as possible after they 

have been received: http://

www.regulations.gov. VA will not post 

on Regulations.gov public comments 

that make threats to individuals or 

institutions or suggest that the 

commenter will take actions to harm the 

individual. VA encourages individuals 

not to submit duplicative comments; 

however, we will post comments from 

multiple unique commenters even if the 

content is identical or nearly identical 

to other comments. Any public 

comment received after the comment 

period’s closing date is considered late 

and will not be considered in the final 

rulemaking. In accordance with the 

Providing Accountability Through 

Transparency Act of 2023, a 100 word 

Plain-Language Summary of this 

proposed rule is available at 

Regulations.gov, under RIN 2900–AR82. 

FOR FURTHER INFORMATION CONTACT: 

Michelle Myers, Management and 

Program Analyst, Policy and Regulatory 

Service, National Cemetery 

Administration, Department of Veterans 


ddrumheller on DSK120RN23PROD with PROPOSALS1