[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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