[Federal Register Volume 75, Number 100 (Tuesday, May 25, 2010)]
[Proposed Rules]
[Pages 29217-29219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12535]


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DEPARTMENT OF JUSTICE

28 CFR Part 26

[Docket No. OJP 1464; AG Order No. 3157-2010]
RIN 1121-AA76


Office of the Attorney General; Certification Process for State 
Capital Counsel Systems; Removal of Final Rule

AGENCY: Office of the Attorney General, Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: Pursuant to the USA PATRIOT Improvement and Reauthorization 
Act of 2005, the Department of Justice promulgated a final rule to 
implement certification procedures for States seeking to qualify for 
the special Federal habeas corpus review procedures in capital cases 
afforded under chapter 154 of title 28 of the United States Code. See 
Certification Process for State Capital Counsel Systems, 73 FR 75327 
(Dec. 11, 2008). A Federal district court issued an injunction 
requiring the Department to provide an additional public comment period 
and publish a response to any comments received during that period. The 
Department then solicited further public comments. By this proposed 
rule, the Department is proposing to remove the December 11, 2008 
regulations. The Department will issue new regulations on this subject 
by separate rulemaking after the December 2008 regulations are removed.

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before June 24, 2010. Commenters should be aware 
that the electronic Federal Docket Management System will not accept 
comments after Midnight Eastern Time on the last day of the comment 
period.

ADDRESSES: Comments may be mailed to Regulations Docket Clerk, Office 
of Legal Policy, Department of Justice, 950 Pennsylvania Avenue, NW., 
Room 4234, Washington, DC 20530. To ensure proper handling, please 
reference OAG Docket No. 1464 on your correspondence. You may submit 
comments electronically or view an electronic version of this proposed 
rule at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Molly J. Moran, Office of Legal 
Policy, at (202) 514-4601 (not a toll-free number).

SUPPLEMENTARY INFORMATION:
    Posting of Public Comments. Please note that all comments received 
are considered part of the public record and made available for public 
inspection online at http://www.regulations.gov. Such information 
includes personal identifying information (such as your name, address, 
etc.) voluntarily submitted by the commenter.

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    If you want to submit personal identifying information (such as 
your name, address, etc.) as part of your comment, but do not want it 
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING 
INFORMATION'' in the first paragraph of your comment. You also must 
locate all the personal identifying information you do not want posted 
online in the first paragraph of your comment and identify what 
information you want redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You also must prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
http://www.regulations.gov.
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's public docket file, but not posted online. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the FOR FURTHER INFORMATION CONTACT paragraph.
    The reason the Department is requesting electronic comments before 
Midnight Eastern Time on the day the comment period closes is that the 
inter-agency Regulations.gov/Federal Docket Management System (FDMS), 
which receives electronic comments, terminates the public's ability to 
submit comments at Midnight on the day the comment period closes. 
Commenters in time zones other than Eastern may want to take this fact 
into account so that their electronic comments can be received. The 
constraints imposed by the Regulations.gov/FDMS system do not apply to 
U.S. postal comments, which will be considered as timely filed if they 
are postmarked before Midnight on the day the comment period closes.

Overview

    Chapter 154 of title 28, United States Code, makes special 
procedures available to a State respondent in Federal habeas corpus 
proceedings involving review of State capital convictions, but only if 
the Attorney General has certified ``that [the] State has established a 
mechanism for providing counsel in postconviction proceedings as 
provided in section 2265,'' and if ``counsel was appointed pursuant to 
that mechanism, petitioner validly waived counsel, petitioner retained 
counsel, or petitioner was found not to be indigent.'' 28 U.S.C. 
2261(b). 28 U.S.C. 2265(a)(1) provides that, in order for a State to 
qualify for the special habeas procedures, the Attorney General must 
determine that ``the State has established a mechanism for the 
appointment, compensation, and payment of reasonable litigation 
expenses of competent counsel in State postconviction proceedings 
brought by indigent [capital] prisoners'' and that the State ``provides 
standards of competency for the appointment of counsel in [such 
proceedings].''
    Chapter 154 has been in place since the enactment of the 
Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-
132), but was amended by section 507 of Public Law 109-177, the USA 
PATRIOT Improvement and Reauthorization Act of 2005 (``the Act''). 
Prior to the Act, the determination of a State's eligibility for the 
special habeas procedures had been left to the Federal habeas courts. 
The 2005 Act amended, inter alia, sections 2261(b) and 2265 of title 28 
to assign responsibility for chapter 154 certifications to the Attorney 
General of the United States, subject to de novo review by the U.S. 
Court of Appeals for the District of Columbia Circuit.

Rulemaking History

    Section 2265(b) directs the Attorney General to promulgate 
regulations to implement the certification procedure. To fulfill this 
mandate, the Department of Justice published a proposed rule in the 
Federal Register on June 6, 2007, that proposed adding a new subpart 
entitled ``Certification Process for State Capital Counsel Systems'' to 
28 CFR part 26. 72 FR 31217 (June 6, 2007). The comment period ended on 
August 6, 2007. The Department published a notice on August 9, 2007, 
reopening the comment period, 72 FR 44816, and the reopened comment 
period ended on September 24, 2007. The final rule establishing the 
chapter 154 certification procedure was published on December 11, 2008, 
73 FR 75327, with an effective date of January 12, 2009.
    The U.S. District Court for the Northern District of California 
preliminarily enjoined the Department ``during the pendency of these 
proceedings from putting into effect the rule * * * without first 
providing an additional comment period of at least thirty days and 
publishing a response to any comments received during such period.'' 
Habeas Corpus Res. Ctr. v. United States Dep't of Justice, No. 08-2649, 
2009 WL 185423, at *10 (Jan. 20, 2009). Further public comment was 
solicited, with the comment period closing on April 6, 2009. 74 FR 
6131. The Department has reviewed, but has not yet published a response 
to, this latest round of public comments.

Review of Additional Comments

    As the Department reviewed the submitted comments, it considered 
further the statutory requirements governing the regulatory 
implementation of the chapter 154 certification procedures. The 
Attorney General has determined that chapter 154 reasonably could be 
construed to allow the Attorney General greater discretion in making 
certification determinations than the December 11, 2008 regulations 
allowed. For instance, chapter 154 reasonably could be construed to 
permit the Attorney General to make certification determinations based 
on a minimum Federal standard of counsel competency, so long as that 
standard leaves the States sufficient discretion in establishing and 
applying their own counsel competency standards, and to certify only 
those State mechanisms that are adequate (including by providing 
sufficient compensation) to ensure the appointment of counsel who meet 
this Federal standard. In light of the availability of this discretion 
and concerns that the December 11, 2008 regulations unduly constrain 
it, the Attorney General has determined that those regulations should 
not bind him in making certification determinations pending the 
promulgation of a new rule.
    Therefore, by this proposed rule, the Department is proposing to 
remove the December 11, 2008 regulations pending the completion of a 
new rulemaking process, during which the Department will further 
consider what certification procedures are appropriate.

Regulatory Certifications

Executive Order 12866--Regulatory Planning and Review

    This action has been drafted and reviewed in accordance with 
Executive Order 12866 Regulatory Planning and Review, Sec.  1(b), 
Principles of Regulation. The Department of Justice has determined that 
this rule is a ``significant regulatory action'' under Executive Order 
12866, section 3(f), Regulatory Planning and Review, and, accordingly, 
this rule has been reviewed by the Office of Management and Budget.

Executive Order 13132--Federalism

    This regulation will not have substantial direct effects on the 
States,

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on the relationship between the national government and the States, or 
on distribution of power and responsibilities among the various levels 
of government. This proposed rule merely proposes to remove the 
December 11, 2008 regulations. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities. This proposed rule 
merely proposes to remove the December 11, 2008 regulations.

Unfunded Mandates Reform Act of 1955

    This rule will not result in the expenditure by State, local and 
Tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

List of Subjects in 28 CFR Part 26

    Law enforcement officers, Prisoners.

    Accordingly, for the reasons set forth in the preamble, part 26 of 
chapter I of title 28 of the Code of Federal Regulations is proposed to 
be amended as follows:

PART 26--DEATH SENTENCES PROCEDURES

    1. The authority citation for part 26 continues to read as follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 4001(b), 4002; 28 U.S.C. 509, 
510, 2261, 2265.

Subpart B--[Removed and Reserved]

    2. Subpart B is removed and reserved.

    Dated: May 19, 2010.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2010-12535 Filed 5-24-10; 8:45 am]
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