Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 11705 

or secure any swap that is not cleared 

through a derivatives clearing 

organization. 

§ 4.32 [Removed and Reserved] 

7. Section 4.32 is removed and 

reserved. 

8. Section 4.33 is amended by 

a. Revising paragraph (a)(6); and 

b. Revising paragraph (b)(1), to read as 

follows: 

§ 4.33 Recordkeeping. 

* * * * * 

(a) * * * 

(6) Copies of each confirmation or 

acknowledgment of a commodity 

interest transaction, and each purchase 

and sale statement and each monthly 

statement received from a futures 

commission merchant or a retail foreign 

exchange dealer or a swap dealer. 

* * * * * 

(b) * * * 

(1) An itemized daily record of each 

commodity interest transaction of the 

commodity trading advisor, showing the 

transaction date, quantity, commodity 

interest, and, as applicable, price or 

premium, delivery month or expiration 

date, whether a put or a call, strike 

price, underlying contract for future 

delivery or underlying physical, the 

futures commission merchant and/or 

retail foreign exchange dealer carrying 

the account and the introducing broker, 

if any, whether the commodity interest 

was purchased, sold (including, in the 

case of a retail forex transaction, offset), 

exercised, expired (including, in the 

case of a retail forex transaction, 

whether it was rolled forward), and the 

gain or loss realized; Provided, however, 

that if the trading advisor is a 

counterparty to a swap, it must comply 

with the swap data recordkeeping and 

reporting requirements of part 45 of this 

chapter. 

* * * * * 

9. Section 4.34 is amended by 

a. Revising paragraph (g); 

b. Revising paragraph (i)(2); 

c. Revising paragraph (j)(3); and 

d. Revising paragraphs (k)(1)(iii), 

(k)(2) introductory text and (k)(2)(i), to 

read as follows: 

§ 4.34 General disclosures required. 

* * * * * 

(g) Principal risk factors. A discussion 

of the principal risk factors of this 

trading program. This discussion must 

include, without limitation, risks due to 

volatility, leverage, liquidity, and 

counterparty creditworthiness, as 

applicable to the trading program and 

the types of transactions and investment 

activity expected to be engaged in 

pursuant to such program (including 

retail forex and swap transactions, if 

any). 

* * * * * 

(i) * * * 

(2) Where any fee is determined by 

reference to a base amount including, 

but not limited to, ‘‘net assets,’’ ‘‘gross 

profits,’’ ‘‘net profits,’’ ‘‘net gains,’’ ‘‘pips’’ 

or ‘‘bid-asked spread,’’ the trading 

advisor must explain how such base 

amount will be calculated. Where any 

fee is based on the difference between 

bid and asked prices on retail forex or 

swap transactions, the trading advisor 

must explain how such fee will be 

calculated; 

* * * * * 

(j) * * * 

(3) Included in the description of any 

such conflict must be any arrangement 

whereby the trading advisor or any 

principal thereof may benefit, directly 

or indirectly, from the maintenance of 

the client’s commodity interest account 

with a futures commission merchant 

and/or retail foreign exchange dealer, 

and/or from the maintenance of the 

client’s positions with a swap dealer or 

from the introduction of such account 

through an introducing broker (such as 

payment for order flow or soft dollar 

arrangements). 

(k) * * * 

(1) * * * 

(iii) Any introducing broker through 

which the client will be required to 

introduce its account to the futures 

commission merchant and/or retail 

foreign exchange dealer and/or swap 

dealer. 

(2) With respect to a futures 

commission merchant, retail foreign 

exchange dealer, swap dealer or 

introducing broker, an action will be 

considered material if: 

(i) The action would be required to be 

disclosed in the notes to the futures 

commission merchant’s, retail foreign 

exchange dealer’s, swap dealer’s or 

introducing broker’s financial 

statements prepared pursuant to 

generally accepted accounting 

principles; 

* * * * * 

Issued in Washington, DC, on February 24, 

2011, by the Commission. 

David A. Stawick, 

Secretary of the Commission. 

Appendices to Amendments to 

Commodity Pool Operator and 

Commodity Trading Advisor 

Regulations Resulting from the DoddFrank Act—Commission Voting 

Summary and Statements of 

Commissioners 

Note: The following appendices will not 

appear in the Code of Federal Regulations. 

Appendix 1—Commission Voting 

Summary 

On this matter, Chairman Gensler and 

Commissioners Dunn, Sommers, Chilton and 

O’Malia voted in the affirmative; no 

Commissioner voted in the negative. 

Appendix 2—Statement of Chairman 

Gary Gensler 

I support the proposed rule that will 

amend certain provisions of Part 4 of the 

Commission’s regulations regarding the 

operations and activities of commodity pool 

operators (CPOs) and commodity trading 

advisors (CTAs). The proposed amendments 

would ensure that CFTC regulations with 

regard to CPOs and CTAs reflect changes 

made to the Commodity Exchange Act by the 

Dodd-Frank Act. Consistent with the DoddFrank Act revisions to the definitions of 

CPOs and CTAs to include pools involved in 

swaps and advising on swaps, the proposed 

amendments will enhance current customer 

protections by increasing the transparency of 

swap activities by CPOs and CTAs to their 

pool participants and clients. The proposed 

rule would require that this information be 

included in the disclosure, reporting and 

recordkeeping scheme that currently exists 

for CPOs and CTAs under Part 4. 

[FR Doc. 2011–4657 Filed 3–2–11; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF JUSTICE 

28 CFR Part 26 

[Docket No. OJP (DOJ) 1540; AG Order No. 

3255–2011] 

RIN 1121–AA77 

Office of the Attorney General; 

Certification Process for State Capital 

Counsel Systems 

AGENCY: Department of Justice. 

ACTION: Proposed rule. 

SUMMARY: Section 2265 of title 28, 

United States Code, instructs the 

Attorney General to promulgate 

regulations to implement certification 

procedures for States seeking to qualify 

for the expedited Federal habeas corpus 

review procedures in capital cases 

under chapter 154 of title 28. The 

procedural benefits of chapter 154 are 

available to States that establish 

mechanisms for providing counsel to 

indigent capital defendants in State 

postconviction proceedings that satisfy 

certain statutory requirements. This 

proposed rule sets forth the required 

regulations for the certification 

procedure. 

DATES: Written comments must be 

postmarked and electronic comments 

must be submitted on or before June 1, 

2011. Comments received by mail will 

be considered timely if they are 


srobinson on DSKHWCL6B1PROD with PROPOSALS
11706 Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 

postmarked on or before that date. The 

electronic Federal Docket Management 

System (FDMS) will accept comments 

until Midnight Eastern Time at the end 

of that day. 

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. 1540 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: Lisa 

Ellman, Office of Legal Policy, (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 and 

address) voluntarily submitted by the 

commenter. 

You are not required to submit 

personal identifying information in 

order to comment on this rule. 

Nevertheless, if you want to submit 

personal identifying information (such 

as your name and address) 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 paragraph above entitled 

FOR FURTHER INFORMATION CONTACT. 

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 

judgments, 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). Section 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 

(AEDPA), Public Law 104–132, section 

107, 110 Stat. 1214, 1221–26 (1996), but 

was amended by the USA PATRIOT 

Improvement and Reauthorization Act 

of 2005, Public Law 109–177, section 

507, 120 Stat. 192, 250–51 (2006). Prior 

to the 2006 amendment, the 

determination of a State’s eligibility for 

the special procedures was left to the 

Federal habeas courts. The 2006 

amendment assigned responsibility for 

chapter 154 certifications to the 

Attorney General of the United States, 

subject to de novo review by the 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. 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. 

In January 2009, the United States 

District Court for the Northern District 

of California enjoined the Department 

‘‘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 Resource Ctr. v. U.S. 

Dep’t of Justice, No. 08–2649, 2009 WL 

185423, at *10 (Jan. 20, 2009) 

(preliminary injunction); Habeas Corpus 

Resource Ctr. v. U.S. Dep’t of Justice, 

No. 08–2649, slip op. at 1 (Jan. 8, 2009) 

(temporary restraining order). On 

February 6, 2009, the Department 

solicited further public comment, with 

the comment period closing on April 6, 

2009. 74 FR 6131. 

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 determined that chapter 154 

gave him greater discretion in making 

certification determinations than the 

December 11, 2008 regulations would 

have allowed. Therefore, the 

Department published a notice in the 

Federal Register on May 25, 2010, 

proposing to revoke the December 11, 

2008 regulations by removing them from 

the Code of Federal Regulations pending 

the completion of a new rulemaking 

process, during which the Department 

would further consider what standards 

and procedures were appropriate. 75 FR 

29217. The comment period closed on 

June 24, 2010. On November 23, 2010, 

the Department published a final rule 

removing the December 11, 2008 

regulations. 75 FR 71353. 

The rule proposed today is the result 

of the Attorney General’s 

reconsideration of the appropriate 

standards and procedures for chapter 

154 certification. Sections 26.20 and 

26.21 of the proposed rule are, 

respectively, a general statement of 

purpose and a section defining certain 

terms appearing in chapter 154. These 

sections are unchanged from the 

December 11, 2008 final rule. Section 

26.22 explains the requirements for 

certification under chapter 154, relating 

to appointment, compensation, and 

payment of reasonable litigation 

expenses of competent counsel in State 

postconviction proceedings in capital 

cases. It is significantly different from 

the corresponding section in the 

December 11, 2008 regulations, 

particularly with respect to counsel 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 11707 

competency and compensation 

standards. Section 26.23 sets out the 

procedures for accepting, obtaining 

public comment on, and deciding State 

requests for chapter 154 certification. It 

is similar in substance to the 

corresponding section of the December 

11, 2008 regulations, but in some 

respects simplified and updated. A 

section-by-section analysis of the new 

proposed rule follows. 

Section-by-Section Analysis 

Section 26.20 

Section 26.20, which is unchanged 

from the December 11, 2008 regulations, 

explains the rule’s purpose to 

implement the certification procedure 

for chapter 154. 

Section 26.21 

Section 26.21, which is also 

unchanged from the December 11, 2008 

regulations, defines certain terms used 

in chapter 154 and the regulations. 

Under 28 U.S.C. 2265(a), a 

certification request must be made by 

‘‘an appropriate State official.’’ Prior to 

the 2006 amendments to chapter 154, 

Federal courts entertaining habeas 

corpus applications by State prisoners 

under sentence of death would decide 

which set of habeas corpus procedures 

applied—chapter 153 or chapter 154 of 

title 28—and State attorneys general 

responsible for such litigation could 

request determinations that their States 

had satisfied the requirements for the 

applicability of chapter 154. The 2006 

amendments to chapter 154 were not 

intended to disable the State attorneys 

general from their pre-existing role in 

this area and State attorneys general 

continue in most instances to be the 

officials with the capacity and 

motivation to seek chapter 154 

certification for their States. See 73 FR 

at 75329–30. Section 26.21 of the rule 

accordingly provides that the 

appropriate official to seek chapter 154 

certification is normally the State 

attorney general. In those few States, 

however, where the State attorney 

general does not have responsibilities 

relating to Federal habeas corpus 

litigation, the Chief Executive of the 

State will be considered the appropriate 

State official to make a submission on 

behalf of the State. 

Section 26.21 defines ‘‘State 

postconviction proceedings’’ as 

‘‘collateral proceedings in State court, 

regardless of whether the State conducts 

such proceedings after or concurrently 

with direct State review.’’ Collateral 

review normally takes place following 

the completion of direct review of the 

judgment, but some States have special 

procedures for capital cases in which 

collateral proceedings and direct review 

may take place concurrently. Formerly 

separate provisions for the application 

of chapter 154 in States with ‘‘unitary 

review’’ procedures (concurrent 

collateral and direct review) were 

replaced by the 2006 amendments with 

provisions that permit chapter 154 

certification for all States under uniform 

standards, regardless of their timing of 

collateral review vis-a-vis direct review. 

Compare 28 U.S.C. 2261(b), 2265 (2006) 

(as amended by the USA PATRIOT 

Improvement and Reauthorization Act 

of 2005), with 28 U.S.C. 2261(b), 2265 

(2000) (as enacted by AEDPA); see 152 

Cong. Rec. S1620 (daily ed. Mar. 2, 

2006) (remarks of Sen. Kyl) (explaining 

that the current provisions simplify the 

chapter 154 qualification standards, 

‘‘which obviates the need for separate 

standards for those States that make 

direct and collateral review into 

separate vehicles and those States with 

unitary procedures’’). 

The definition of ‘‘State 

postconviction proceedings’’ in the rule 

reflects the underlying objective of 

chapter 154 to provide expedited 

Federal habeas corpus review in capital 

cases arising in States that have gone 

beyond the constitutional requirement 

of appointing counsel for indigents at 

trial and on appeal by extending the 

appointment of counsel to indigent 

capital defendants in State collateral 

proceedings. See 73 FR at 75332–33, 

75337 (reviewing relevant legislative 

and regulatory history). The provisions 

of chapter 154, as well as its legislative 

history, reflect the understanding of 

‘‘postconviction proceedings’’ as not 

encompassing all proceedings that occur 

after conviction (e.g., sentencing 

proceedings, direct review), but rather 

as referring to collateral proceedings. 

See 28 U.S.C. 2261(e) (providing that 

ineffectiveness or incompetence of 

counsel during postconviction 

proceedings in a capital case cannot be 

a ground for relief in a Federal habeas 

corpus proceeding); 28 U.S.C. 2263(a), 

(b)(2) (180-day time limit for Federal 

habeas filing under chapter 154 starts to 

run ‘‘after final State court affirmance of 

the conviction and sentence on direct 

review or the expiration of the time for 

seeking such review’’ subject to tolling 

‘‘from the date on which the first 

petition for post-conviction review or 

other collateral relief is filed until the 

final State court disposition of such 

petition’’); 152 Cong. Rec. S1620, 1624– 

25 (daily ed. Mar. 2, 2006) (remarks of 

Sen. Kyl) (explaining that chapter 154 

provides incentives for States to provide 

counsel in State postconviction 

proceedings, equated to collateral 

proceedings); 151 Cong. Rec. E2639–40 

(daily ed. Dec. 22, 2005) (extension of 

remarks of Rep. Flake) (same 

understanding); see also, e.g., Murray v. 

Giarratano, 492 U.S. 1 (1989) (equating 

postconviction and collateral 

proceedings). 

Section 26.22 

Section 26.22 sets out the 

requirements for certification that a 

State must meet to qualify for the 

application of chapter 154. These are 

the requirements in 28 U.S.C. 2261(c)– 

(d) and 2265(a)(1). 

Paragraph (a) of § 26.22—Appointment 

of Counsel 

Paragraph (a) of § 26.22 sets out the 

requirements of chapter 154 concerning 

appointment of counsel that appear in 

28 U.S.C. 2261(c)–(d). 

Paragraph (b) of § 26.22—Competent 

Counsel 

Paragraph (b) of § 26.22 explains how 

States may satisfy the requirement to 

provide for appointment of ‘‘competent 

counsel’’ and to provide ‘‘standards of 

competency’’ for such appointments. 28 

U.S.C. 2265(a)(1)(A), (C). 

The corresponding portion of the 

December 11, 2008 regulations 

construed the reference to appointment 

of ‘‘competent counsel’’ in section 

2265(a)(1)(A) as a cross-reference to 

counsel meeting the competency 

standards provided by the State 

pursuant to section 2265(a)(1)(C). It 

accordingly treated the definition of 

such standards as a matter of State 

discretion, not subject to further review 

by the Attorney General. See 73 FR at 

75331. However, these provisions may 

also reasonably be construed as 

permitting the Attorney General to 

require a threshold of minimum counsel 

competency, while recognizing 

substantial State discretion in setting 

counsel competency standards. See 

generally Memorandum for the Attorney 

General from David J. Barron, Acting 

Assistant Attorney General, Office of 

Legal Counsel, Re: The Scope of the 

Attorney General’s Authority in 

Certifying Whether a State Has Satisfied 

the Requirements for Appointment of 

Competent Post-Conviction Counsel in 

Chapter 154 of Title 28, United States 

Code (Dec. 16, 2009), available at 

http://www.justice.gov/olc/. The latter 

understanding is supported by cases 

interpreting chapter 154, see, e.g., 

Spears v. Stewart, 283 F.3d 992, 1013 

(9th Cir. 2002) (recognizing that 

‘‘Congress * * * intended the states to 

have substantial discretion to determine 

the substance of the competency 


srobinson on DSKHWCL6B1PROD with PROPOSALS
11708 Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 

standards’’ under chapter 154 while still 

reviewing the adequacy of such 

standards), and by the original Powell 

Committee proposal from which many 

features of chapter 154 ultimately 

derive, see 135 Cong. Rec. 24692, 24696 

(Oct. 16, 1989). This understanding is 

adopted in § 26.22(b) of the proposed 

rule. 

The specific minimum standards set 

forth in paragraph (b) are based on 

judgments by Congress in federal laws 

concerning adequate capital counsel 

competency standards and on judicial 

interpretation of the counsel 

competency requirements of chapter 

154. Three broad options are provided 

for States to satisfy this requirement—an 

option involving an experience 

requirement derived from the standard 

for appointment of counsel in Federal 

court proceedings in capital cases 

(paragraph (b)(1)); an option involving 

qualification standards set in a manner 

consistent with relevant portions of the 

Innocence Protection Act (paragraph 

(b)(2)); and an option of assuring an 

appropriate level of proficiency in other 

ways, such as by requiring some 

combination of experience and training 

(paragraph (b)(3)). 

Option 1: § 26.22(b)(1)—The 

Competency Standards for Federal 

Court Proceedings 

As provided in paragraph (b)(1) of 

§ 26.22, a State may satisfy chapter 154’s 

requirement relating to counsel 

competency by requiring appointment 

of counsel ‘‘who have been admitted to 

the bar for at least five years and have 

at least three years of felony litigation 

experience.’’ This is based on the 

standard for appointed counsel in 

capital case proceedings in Federal 

court. See 18 U.S.C. 3599(a)–(e). 

Because Congress has determined that 

such a counsel competency standard is 

adequate for capital cases in Federal 

court proceedings, including 

postconviction proceedings, see id. 

§ 3599(a)(2), it will also be considered 

adequate for chapter 154 purposes when 

such cases are at the stage of State 

postconviction review. 

The counsel competency standards 

for Federal court proceedings in capital 

cases under 18 U.S.C. 3599 do not 

require adherence to the five-year/threeyear experience requirement in all 

cases, but provide that the court ‘‘for 

good cause, may appoint another 

attorney whose background, knowledge, 

or experience would otherwise enable 

him or her to properly represent the 

defendant,’’ with due consideration of 

the seriousness of the penalty (i.e., 

capital punishment) and the nature of 

the litigation. Id. § 3599(d). For 

example, a court might consider it 

appropriate to appoint an attorney who 

is a law professor with expertise in 

capital punishment law and training in 

capital postconviction litigation to 

represent a prisoner under sentence of 

death, even if the attorney has less than 

three years of felony litigation 

experience. The rule in paragraph (b)(1) 

accordingly does not require the 

imposition of a five-year/three-year 

minimum experience requirement in all 

cases, but allows States that generally 

impose such a requirement to permit the 

appointment of other counsel who 

would qualify for appointment under 

the standards of 18 U.S.C. 3599, i.e., 

those whose background, knowledge, or 

experience would otherwise enable 

them to properly represent prisoners 

under sentence of death considering the 

seriousness of the penalty and the 

nature of the litigation. This is reflected 

in the language in paragraph (b)(1) 

allowing appointment of counsel ‘‘who 

would otherwise qualify for 

appointment pursuant to the standards 

for Federal habeas corpus proceedings 

reviewing State capital cases under 18 

U.S.C. 3599.’’ 

Option 2: § 26.22(b)(2)—The Innocence 

Protection Act Standards 

Paragraph (b)(2) in § 26.22 sets forth a 

second option for States to satisfy the 

counsel competency requirements of 

chapter 154, specifically, by setting 

qualification standards for appointment 

of postconviction capital counsel in a 

manner consistent with the Innocence 

Protection Act (IPA), 42 U.S.C. 14163– 

14163e. The IPA directs the Attorney 

General to provide grants to States to 

create or improve ‘‘effective system[s] 

for providing competent legal 

representation’’ in capital cases, 42 

U.S.C. 14163(c)(1), and provides a 

definition of ‘‘effective system’’ that is 

largely based on elements of the 

American Bar Association Guidelines 

for the Appointment and Performance of 

Defense Counsel in Death Penalty Cases 

(rev. ed. Feb. 2003) (ABA Guidelines), 

42 U.S.C. 14163(e). The IPA specifies 

that such effective systems are to 

include appointment of capital counsel 

(i) by a public defender program, (ii) by 

an entity composed of individuals with 

demonstrated knowledge and expertise 

in capital cases (other than current 

prosecutors) that is established by 

statute or by the highest State court with 

criminal case jurisdiction, or (iii) by the 

court appointing qualified attorneys 

from a roster maintained by a State or 

regional selection committee or similar 

entity pursuant to a pre-existing 

statutory procedure. 42 U.S.C. 

14163(e)(1). 

Under the IPA requirements, the 

appointing authority or an appropriate 

designated entity must ‘‘establish 

qualifications for attorneys who may be 

appointed to represent indigents in 

capital cases.’’ 42 U.S.C. 14163(e)(2)(A). 

The IPA does not prescribe the content 

of these qualifications but assumes that 

the specifications regarding the nature 

of the appointment or selection 

authority and the associated 

requirements for establishment of 

qualifications can be relied on to 

provide appropriate competency 

standards. Paragraph (b)(2) in § 26.22 

follows this legislative judgment in 

relation to States’ satisfaction of the 

counsel competency requirements of 

chapter 154. Thus, a State’s capital 

counsel mechanism will be deemed 

adequate for purposes of chapter 154’s 

counsel competency requirements if it 

provides for the appointment of counsel 

in State postconviction proceedings in 

capital cases in a manner consistent 

with 42 U.S.C. 14163(e)(1) and 

establishes standards of competency for 

such counsel in a manner consistent 

with 42 U.S.C. 14163(e)(2)(A). 

Option 3: § 26.22(b)(3)—Other 

Standards Reasonably Assuring 

Proficiency 

In enacting chapter 154, ‘‘Congress did 

not envision any specific competency 

standards but, rather, intended the 

states to have substantial discretion to 

determine the substance of the 

competency standards.’’ Spears, 283 

F.3d at 1013 (citing 177 Cong. Rec. 

S3191, S3220 (daily ed. Mar. 13, 1991)). 

The options described in paragraphs 

(b)(1) and (b)(2) in § 26.22 accordingly 

do not exhaust the means by which 

States may satisfy chapter 154’s 

requirements concerning counsel 

competency. Indeed, Congress in 

formulating chapter 154 rejected a 

recommendation that States uniformly 

be required to satisfy the standards for 

Federal court proceedings in capital 

cases that currently appear in 18 U.S.C. 

3599, see 73 FR at 75331, and in 

amending chapter 154 in 2006 Congress 

did not modify chapter 154 to require 

adherence by States to the IPA 

standards that had been enacted in 2004 

but rather reenacted the more general 

language of chapter 154 relating to 

counsel competency. 

Consequently, as provided in 

paragraph (b)(3) in § 26.22, the Attorney 

General will consider whether a State’s 

counsel competency standards 

reasonably assure appointment of 

counsel with a level of proficiency 

appropriate for State postconviction 

litigation in capital cases, even if they 

do not meet the particular criteria set 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 11709 

forth in paragraph (b)(1) or (b)(2). As in 

the courts’ consideration of the 

adequacy of State competency standards 

prior to the 2006 amendments to 

chapter 154, no definite formula can be 

prescribed for this review, and the 

Attorney General will assess such State 

mechanisms individually. Measures that 

will be deemed relevant include 

standards of experience, knowledge, 

skills, training, education, or 

combinations thereof that a State 

requires attorneys to meet in order to be 

eligible for appointment in State capital 

postconviction proceedings. Cf. 18 

U.S.C. 3599(d) (allowing appointment of 

counsel whose background, knowledge, 

or experience would otherwise enable 

such counsel to properly represent the 

defendant); Spears, 283 F.3d at 1012–13 

(finding that competency standards 

involving combination of experience, 

proficiency, and education were 

adequate under chapter 154); ABA 

Guidelines §§ 5.1.B.2, 8.1.B, pp. 35, 46 

(recommending skill and training 

requirements for capital counsel). Also, 

the rule in paragraphs (b)(1) and (b)(2) 

of § 26.22 identifies particular 

approaches that will be considered 

adequate, specifically, those of the 

Federal capital counsel statute (18 

U.S.C. 3599) and of the Innocence 

Protection Act (42 U.S.C. 14163(e)(1), 

(2)(A)). These approaches accordingly 

may serve as benchmarks, and States’ 

adoption of competency requirements 

that are similar or that are likely to 

result in even higher levels of 

proficiency will weigh in favor of a 

finding of adequacy for purposes of 

chapter 154. As indicated in the 

prefatory language in paragraph (b) of 

§ 26.22, State capital counsel 

mechanisms will be deemed adequate in 

relation to counsel competency if they 

meet or exceed the standards identified 

in the paragraph. States will not be 

penalized for going beyond the 

minimum required by the rule. Thus, for 

example, in relation to paragraph (b)(1), 

State competency standards will be 

considered sufficient if they require, 

e.g., five years of felony litigation 

experience rather than three, uniform 

satisfaction of the five-year/three-year 

experience requirement rather than 

allowing some exception as in 18 U.S.C. 

3599(d), or training requirements for 

appointment in addition to the specified 

experience requirement. 

The rule does not require that all 

counsel in a State qualify under the 

same standard. Alternative standards 

may be used so long as the State 

mechanism requires that all counsel 

satisfy some standard qualifying under 

paragraph (b). Cf. 18 U.S.C. 3599(d) 

(allowing exceptions to categorical 

experience requirement); Spears, 283 

F.3d at 1013 (finding that alternative 

standards are allowed under chapter 

154). Hence, for example, a State system 

could pass muster by requiring that 

appointed counsel either satisfy an 

experience standard sufficient under 

paragraph (b)(1) or satisfy an alternative 

standard sufficient under paragraph 

(b)(3) involving more limited experience 

but an additional training requirement. 

Paragraph (c) of § 26.22—Compensation 

of Counsel 

Paragraph (c) of § 26.22 explains how 

a State may satisfy the requirement that 

it have established a mechanism for the 

compensation of appointed counsel. 28 

U.S.C. 2265(a)(1)(A). The corresponding 

portion of the December 11, 2008 

regulations assumed that levels of 

compensation for purposes of chapter 

154 were a matter of State discretion, 

not subject to review by the Attorney 

General, because the statute refers 

simply to ‘‘compensation’’ and imposes 

no further requirement that the 

authorized compensation be ‘‘adequate’’ 

or ‘‘reasonable.’’ See 73 FR at 75331–32. 

However, the broader statutory context 

is the requirement that the State 

establish a mechanism ‘‘for the 

appointment [and] compensation * * * 

of competent counsel.’’ 28 U.S.C. 

2265(a)(1)(A). This requirement reflects 

a determination by Congress that 

reliance on unpaid volunteers to 

represent indigent prisoners under 

sentence of death is insufficient, and a 

State mechanism affording inadequate 

compensation could similarly fall short 

in ensuring the availability of competent 

counsel for appointment. Hence, when 

a State relies on a compensation 

incentive to secure competent counsel, 

chapter 154 is reasonably construed to 

permit the Attorney General to review 

the adequacy of authorized 

compensation. This understanding is 

adopted in § 26.22(c) of the proposed 

rule. 

Paragraph (c)(1) in § 26.22 describes a 

number of possible compensation 

standards that will be considered 

adequate for purposes of chapter 154, 

generally using as benchmarks the 

authorizations for compensation of 

capital counsel that have been deemed 

adequate in other Acts of Congress. 

The first option, appearing in 

paragraph (c)(1)(A), is compensation 

comparable to that authorized by 

Congress for representation in Federal 

habeas corpus proceedings reviewing 

State capital cases. 18 U.S.C. 3599(g)(1). 

This level of compensation should 

similarly be adequate to ensure the 

availability of competent counsel for 

appointment in such cases at the stage 

of State postconviction review. 

The second option, appearing in 

paragraph (c)(1)(B), is compensation 

comparable to that of retained counsel 

who meet competency standards 

sufficient under paragraph (b). The 

Innocence Protection Act and the ABA 

Guidelines similarly endorse reliance on 

market rates for legal representation to 

provide adequate compensation for 

appointed capital counsel. See 42 U.S.C. 

14163(e)(2)(F)(ii)(II); ABA Guidelines 

§ 9.1.B.3, p. 49. Compensation sufficient 

to induce competent attorneys to carry 

out such representation for hire should 

likewise be sufficient to attract 

competent attorneys to accept 

appointments for such representation. 

The third option, appearing in 

paragraph (c)(1)(C), is compensation 

comparable to that of appointed counsel 

in State appellate or trial proceedings in 

capital cases. Cf. 18 U.S.C. 3599(g)(1) 

(authorization for compensation of 

capital counsel not differentiating 

between compensation at different 

stages of representation). The 

compensation afforded at the stages of 

trial and appeal must be sufficient to 

secure competent attorneys to provide 

representation because effective legal 

representation of indigents is 

constitutionally required at those stages. 

Comparable compensation should 

accordingly be sufficient for that 

purpose at the postconviction stage. 

The fourth option, appearing in 

paragraph (c)(1)(D), is compensation 

comparable to that of attorneys 

representing the State in State 

postconviction proceedings in capital 

cases. This option also follows the 

Innocence Protection Act and the ABA 

Guidelines, which provide that capital 

counsel employed by defender 

organizations should be compensated 

on a salary scale commensurate with the 

salary scale of prosecutors in the 

jurisdiction. 42 U.S.C. 

14163(e)(2)(F)(ii)(I); ABA Guidelines 

§ 9.1.B.2, p. 49. The rule allows this 

approach for compensation of both 

public defenders and private counsel, 

but recognizes that private defense 

counsel may have to pay from their own 

pockets overhead expenses that publicly 

employed prosecutors do not bear. The 

rule accordingly specifies that, if 

paragraph (c)(1)(D) is relied on to justify 

the level of compensation authorized for 

private counsel, the compensation 

standard should take account of 

overhead costs (if any) that are not 

otherwise payable as reasonable 

litigation expenses. Cf. Baker v. 

Corcoran, 220 F.3d 276, 285–86 (4th Cir. 

2000) (finding that compensation 

resulting in substantial losses to 


srobinson on DSKHWCL6B1PROD with PROPOSALS
11710 Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 

appointed counsel was inadequate 

under chapter 154). 

In comparing a State’s compensation 

standards to the benchmarks identified 

in paragraph (c)(1), both hourly rates 

and overall limits on compensation will 

be taken into account. For example, 

under paragraph (c)(1)(C), suppose that 

State law authorizes the same hourly 

rate for compensation of appointed 

capital counsel at the appellate stage 

and in postconviction proceedings, but 

it specially imposes a low overall limit 

on compensable hours at the 

postconviction stage. The compensation 

authorized at the respective stages may 

then not be comparable in any realistic 

sense, and the objective of ensuring the 

availability of competent counsel for 

postconviction representation may not 

be realized, because counsel who 

accepted such representation would 

effectively be required to function as 

uncompensated volunteers to the extent 

they needed to work beyond the 

maximum number of compensable 

hours. This does not mean that State 

compensation provisions will be 

deemed inadequate if they specially 

prescribe presumptive limits on overall 

compensation at the postconviction 

stage, but comparability to the 

paragraph (c)(1) benchmarks may then 

depend on whether the State provides 

means for authorizing compensation 

beyond the presumptive maximum 

where necessary. Cf. Spears, 283 F.3d at 

1015 (approving a presumptive 200- 

hour limit under chapter 154 where 

compensation was available for work 

beyond that limit if reasonable); Mata v. 

Johnson, 99 F.3d 1261, 1266 (5th Cir. 

1996), vacated in part on reh’g on other 

grounds, 105 F.3d (5th Cir. 1997) 

(overall $7500 limit on compensation 

was not facially inadequate under 

chapter 154 and was not shown 

inadequate in the particular case). 

As with the counsel competency 

standards of paragraph (b), the counsel 

compensation standards of paragraph 

(c)(1) provide only a floor that States are 

free to exceed, and not all counsel must 

be compensated in conformity with a 

single standard. Rather, a State may 

adopt alternative standards, each 

comparable to or exceeding some 

benchmark identified in paragraph 

(c)(1), and provide for compensation of 

different counsel or classes thereof in 

conformity with different standards. For 

example, a State might provide for 

representation of some indigent capital 

defendants in postconviction 

proceedings by appointed private 

counsel and some by public defender 

personnel, compensate the private 

counsel in conformity with paragraph 

(c)(1)(C), and compensate the public 

defender counsel in conformity with 

paragraph (c)(1)(D). 

The rule recognizes that the 

compensation options set out in 

paragraph (c)(1) of § 26.22 are not 

necessarily the only means by which a 

State may provide competent counsel. 

State compensation provisions for 

capital counsel have been deemed 

adequate for purposes of chapter 154 

and other Federal laws independent of 

any comparison to the benchmarks in 

paragraph (c)(1). See 42 U.S.C. 

14163(e)(2)(F)(i) (State may compensate 

under qualifying statutory procedure 

predating the Innocence Protection Act); 

Spears, 283 F.3d at 1015 (State could 

compensate at ‘‘a rate of up to $100 an 

hour, a rate that neither Petitioner nor 

amici argue was unreasonable’’). Also, a 

State may secure representation for 

indigent capital defendants in 

postconviction proceedings by means 

not dependent on any special financial 

incentive for accepting appointments, 

such as by providing salaried public 

defender personnel to carry out such 

assignments as part of their duties. 

Accordingly, under paragraph (c)(2) in 

§ 26.22, capital counsel mechanisms 

involving compensation provisions that 

do not satisfy paragraph (c)(1) are 

approvable if they are otherwise 

reasonably designed to ensure the 

availability of competent counsel. 

Paragraph (d) of § 26.22—Payment of 

Reasonable Litigation Expenses 

Paragraph (d) of § 26.22 incorporates 

the requirement in 28 U.S.C. 

2265(a)(1)(A) to provide for the payment 

of reasonable litigation expenses. An 

inflexible cap on reimbursable litigation 

expenses in capital postconviction 

proceedings could contravene this 

requirement by foreclosing the payment 

of costs incurred by counsel, even if 

determined by the court to be 

reasonably necessary. However, the 

requirement does not foreclose a 

presumptive limit if the State provides 

means for authorizing payment of 

litigation expenses beyond the limit 

where necessary. Cf. 18 U.S.C. 3599(f), 

(g)(2) (establishing presumptive $7500 

limit on payment for litigation expenses 

in federal court proceedings in capital 

cases, with authority for chief judge or 

delegee to approve higher amounts); 

Mata, 99 F.3d at 1266 (concluding that 

overall $2500 limit on payment of 

litigation expenses was not facially 

inadequate under chapter 154 and was 

not shown to be inadequate in the 

particular case). 

Section 26.23 

Section 26.23 in the rule sets out the 

mechanics of the certification process 

for States seeking to opt in to chapter 

154. 

Paragraph (a) provides that an 

appropriate State official may request in 

writing that the Attorney General 

determine whether the State meets the 

requirements for chapter 154 

certification. Paragraph (b) provides that 

the Attorney General will make the 

request available on the Internet and 

solicit public comment on the request 

by publishing a notice in the Federal 

Register. It requires Internet availability 

because State requests for certification 

may include supporting materials not 

readily reproducible or viewable in the 

Federal Register, such as copies of State 

statutes, rules, and judicial decisions 

bearing on the State’s satisfaction of 

chapter 154’s requirements for 

certification. 

As provided in paragraph (c), the 

Attorney General will review the State’s 

request, including consideration of 

timely public comments received in 

response to the Federal Register notice. 

The Attorney General will decide 

whether the State has satisfied the 

requirements for chapter 154 

certification and will publish the 

certification in the Federal Register if 

certification is granted. The certification 

will include a determination of the date 

the capital counsel mechanism 

qualifying the State for certification was 

established, as that date is the effective 

date of the certification. 28 U.S.C. 

2265(a)(2). 

Paragraph (d) addresses the effect of 

changes or alleged changes in a State’s 

capital counsel mechanism after that 

mechanism has been certified by the 

Attorney General. The paragraph first 

addresses situations involving changes 

or alleged changes in a State’s capital 

counsel mechanism prior to State 

postconviction proceedings in a capital 

case. Chapter 154’s expedited Federal 

habeas corpus procedures are available 

only in cases in which both of two 

statutory conditions are met: (i) The 

State’s capital counsel mechanism has 

been certified by the Attorney General, 

28 U.S.C. 2261(b)(1), and (ii) ‘‘counsel 

was appointed pursuant to that 

mechanism’’—i.e., the mechanism 

certified by the Attorney General— 

unless the petitioner ‘‘validly waived 

counsel * * * [or] retained counsel 

* * * or * * * was found not to be 

indigent,’’ 28 U.S.C. 2261(b)(2). The first 

sentence of paragraph (d) therefore 

notes that certification by the Attorney 

General under chapter 154 reflects the 

Attorney General’s determination that 

the State capital counsel mechanism 

examined in the Attorney General’s 

review satisfies chapter 154’s 

requirements. If a State later 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 11711 

discontinues that mechanism before 

counsel is appointed in a given State 

postconviction proceeding, then counsel 

in that case will not have been 

‘‘appointed pursuant to’’ the mechanism 

that was approved by the Attorney 

General and chapter 154 would 

accordingly be inapplicable. Similarly, 

if a State later changes or is alleged to 

have changed its capital counsel 

mechanism, then chapter 154 may lead 

to litigation in Federal habeas courts, 

with those courts responsible for 

deciding whether the State has actually 

changed its mechanism and, if so, 

whether the change means that counsel 

(even if appointed) was appointed 

pursuant to what is in effect a new and 

uncertified mechanism, rather than the 

mechanism certified by the Attorney 

General. 

To avoid such litigation, the second 

sentence of paragraph (d) provides that 

a State may seek a new certification by 

the Attorney General if it changes or is 

alleged to have changed a previously 

certified capital counsel mechanism. If 

a State wishes to improve on a certified 

capital counsel mechanism, then 

certification by the Attorney General of 

the new or revised mechanism will 

allow the State to avoid Federal habeas 

court litigation over whether chapter 

154 is applicable to cases involving 

appointments made pursuant to that 

mechanism. Similarly, if legal questions 

are raised about the continued 

applicability of chapter 154 based on 

changes or alleged changes in a certified 

capital counsel mechanism, a State may 

seek a new certification by the Attorney 

General that its current mechanism 

satisfies chapter 154’s requirements, 

ensuring the continued applicability of 

chapter 154’s expedited Federal habeas 

corpus procedures. By seeking a new 

certification of a new or revised capital 

counsel mechanism, a State may ensure 

that it is the Attorney General, subject 

to review by the D.C. Circuit Court of 

Appeals, who determines whether its 

capital counsel mechanism is in present 

compliance with chapter 154’s 

requirements, see 28 U.S.C. 2261(b)(1), 

2265(c)(2), and avoid litigation over that 

matter in the Federal habeas courts. 

The final sentence in paragraph (d) 

states that subsequent changes in a 

State’s capital counsel mechanism do 

not affect the applicability of chapter 

154 in cases in which a mechanism 

certified by the Attorney General existed 

throughout State postconviction 

proceedings in the case. For example, 

suppose that the Attorney General 

certifies a State’s capital counsel 

mechanism in 2012, the State 

postconviction proceedings in a capital 

case are carried out in 2013 and 2014 

and counsel is appointed in those 

proceedings pursuant to the certified 

mechanism, and Federal habeas corpus 

proceedings in the case commence in 

2015. Suppose further that the State 

makes some change in 2015 to its 

counsel competency or compensation 

standards. Because a certified capital 

counsel mechanism would have been in 

place throughout State postconviction 

review, the prerequisites for expedited 

Federal habeas corpus review under 

chapter 154 would be satisfied, see 28 

U.S.C. 2261(b). That result would not be 

affected by later changes in the State’s 

postconviction capital counsel 

mechanism. 

Regulatory Certifications 

Executive Order 12866—Regulatory 

Planning and Review 

This regulation has been drafted and 

reviewed in accordance with Executive 

Order 12866, Regulatory Planning and 

Review, section 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), 

and, accordingly, this rule has been 

reviewed by the Office of Management 

and Budget. The determination that this 

is a significant regulatory action, 

however, does not reflect a conclusion 

that it is ‘‘likely to result in a rule that 

may * * * [h]ave an annual effect on 

the economy of $100 million or more’’ 

or other adverse effects as described in 

section 3(f)(1) of the Executive Order. 

This rule will have no economic effect 

unless particular States (i) decide, in 

their discretion, that any costs entailed 

in meeting the chapter 154 capital 

counsel requirements are offset or 

justified by resulting cost reductions or 

other benefits to the State under chapter 

154, and (ii) accordingly undertake to 

make any changes needed in their 

capital counsel systems to meet the 

chapter 154 requirements and apply to 

the Attorney General for certification. 

If States decide to apply for chapter 

154 certification, their resulting costs 

will mainly depend on (i) the number of 

capital cases these States litigate in State 

postconviction proceedings, and (ii) the 

incremental difference (if any) between 

their current per-case capital litigation 

costs and the corresponding costs under 

a chapter 154-compliant system. 

Regarding the number of capital cases, 

at the end of 2009, 36 states held 3,118 

prisoners under sentence of death. See 

Bureau of Justice Statistics, Office 

Justice Programs, U.S. Department of 

Justice, Capital Punishment, 2009— 

Statistical Tables at 8, table 4 (Dec. 

2010), available at http:// 

bjs.ojp.usdoj.gov/content/pub/pdf/ 

cp09st.pdf. Regarding the incremental 

costs of satisfying the chapter 154 

standards, States accounting for the 

great majority of capital cases in the 

United States already provide for 

appointment of counsel in State 

postconviction proceedings. These 

States may still fall short of satisfying 

the chapter 154 standards relating to 

payment of litigation expenses or 

compensation of counsel. However, the 

costs necessary to correct such 

deficiencies would be limited to the 

difference between existing caps and 

any higher amounts necessary to defray 

reasonable litigation expenses and to 

secure competent attorneys for 

appointment, and this rule affords 

States a variety of options that may 

minimize any resulting increase in 

costs. 

Even assuming that all States will 

upgrade their postconviction capital 

counsel mechanisms to the extent 

necessary to satisfy the proposed rule, 

and that the number of capital cases 

pending at any time in State 

postconviction proceedings is as high as 

2,000, the total cost for the States could 

not reach $100 million annually unless 

the average increase in litigation costs 

were $50,000 each year for each case in 

State postconviction proceedings. There 

is no reason to believe that costs would 

increase to that degree, and any 

increased costs at that stage would be 

subject to offset by savings resulting 

from chapter 154’s expedited 

procedures in subsequent Federal 

habeas corpus review. See 28 U.S.C. 

2262, 2264, 2266. Moreover, because the 

States would more fully defray the costs 

of representing indigent capital 

defendants in State postconviction 

proceedings, there would be less need 

for representation by private counsel on 

a pro bono basis, often arranged through 

postconviction capital defense projects. 

Thus, State costs also would be offset by 

reduced costs for private entities and 

individuals who otherwise would 

provide representation, reducing the 

overall economic effect. For the 

foregoing reasons, it is not expected that 

this rule will or may have an annual 

effect on the economy of $100 million 

or more. 

Executive Order 13132—Federalism 

This regulation will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on 

distribution of power and 

responsibilities among the various 

levels of government. It provides only a 

framework for those States that wish to 

qualify for the benefits of the expedited 


srobinson on DSKHWCL6B1PROD with PROPOSALS
11712 Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 

habeas procedures of chapter 154 of title 

28 of the United States Code. Therefore, 

in accordance with Executive Order 

13132, 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 section 3(a) and 

(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 rule provides only a framework for 

those States that wish to qualify for the 

benefits of the expedited habeas 

procedures of chapter 154 of title 28 of 

the United States Code. 

Unfunded Mandates Reform Act of 1995 

This rule will not result in aggregate 

expenditures by state, local and tribal 

governments 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. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a major rule as 

defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, 5 U.S.C. 804. This 

rule will not result in an annual effect 

on the economy of $100 million or 

more; a major increase in costs or prices; 

or significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of United States-based companies to 

compete with foreign-based companies 

in domestic and export markets. 

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. 

2. Add Subpart B to read as follows: 

Subpart B—Certification Process for 

State Capital Counsel Systems 

Sec. 

26.20 Purpose. 

26.21 Definitions. 

26.22 Requirements. 

26.23 Certification process. 

§ 26.20 Purpose. 

Sections 2261(b)(1) and 2265(a) of 

title 28 of the United States Code 

require the Attorney General to certify 

whether a State has a mechanism for 

providing legal representation to 

indigent prisoners in State 

postconviction proceedings in capital 

cases that satisfies the requirements of 

chapter 154 of title 28. If certification is 

granted, sections 2262, 2263, 2264, and 

2266 of chapter 154 of title 28 apply in 

relation to Federal habeas corpus review 

of capital cases from the State. 

Subsection (b) of 28 U.S.C. 2265 directs 

the Attorney General to promulgate 

regulations to implement the 

certification procedure under subsection 

(a) of that section. 

§ 26.21 Definitions. 

For purposes of this part, the term— 

Appropriate state official means the 

State Attorney General, except that, in a 

State in which the State Attorney 

General does not have responsibility for 

Federal habeas corpus litigation, it 

means the Chief Executive thereof. 

State postconviction proceedings 

means collateral proceedings in State 

court, regardless of whether the State 

conducts such proceedings after or 

concurrently with direct State review. 

§ 26.22 Requirements. 

The Attorney General will certify that 

a State meets the requirements for 

certification under 28 U.S.C. 2261 and 

2265 if the Attorney General determines 

that the State has established a 

mechanism for the appointment of 

counsel for indigent prisoners under 

sentence of death in State 

postconviction proceedings that satisfies 

the following standards: 

(a) As provided in 28 U.S.C. 2261(c) 

and (d), the mechanism must offer to all 

such prisoners postconviction counsel, 

who may not be counsel who previously 

represented the prisoner at trial unless 

the prisoner and counsel expressly 

requested continued representation, and 

the mechanism must provide for the 

entry of an order by a court of record— 

(1) Appointing one or more attorneys 

as counsel to represent the prisoner 

upon a finding that the prisoner is 

indigent and accepted the offer or is 

unable competently to decide whether 

to accept or reject the offer; 

(2) Finding, after a hearing if 

necessary, that the prisoner rejected the 

offer of counsel and made the decision 

with an understanding of its legal 

consequences; or 

(3) Denying the appointment of 

counsel, upon a finding that the 

prisoner is not indigent. 

(b) The mechanism must provide for 

appointment of competent counsel as 

defined in State standards of 

competency for such appointments that 

meet or exceed any of the following: 

(1) Appointment of counsel who have 

been admitted to the bar for at least five 

years and have at least three years of 

felony litigation experience or who 

would otherwise qualify for 

appointment pursuant to the standards 

for Federal habeas corpus proceedings 

reviewing State capital cases under 18 

U.S.C. 3599; 

(2) Appointment of counsel meeting 

qualification standards established in 

conformity with 42 U.S.C. 14163(e)(1), 

(2)(A); or 

(3) Appointment of counsel satisfying 

qualification standards that reasonably 

assure a level of proficiency appropriate 

for State postconviction litigation in 

capital cases. 

(c) The mechanism must provide for 

compensation of appointed counsel. 

(1) A State’s provision for 

compensation will be deemed adequate 

if the authorized compensation is 

comparable to or exceeds— 

(i) The compensation of counsel 

appointed pursuant to 18 U.S.C. 3599 in 

Federal habeas corpus proceedings 

reviewing capital cases from the State; 

(ii) The compensation of retained 

counsel in State postconviction 

proceedings in capital cases who meet 

State standards of competency sufficient 

under paragraph (b) of this section; 

(iii) The compensation of appointed 

counsel in State appellate or trial 

proceedings in capital cases; or 

(iv) The compensation of attorneys 

representing the State in State 

postconviction proceedings in capital 

cases, subject to adjustment for private 

counsel to take account of overhead 

costs not otherwise payable as 

reasonable litigation expenses. 

(2) Provisions for compensation not 

satisfying the criteria in paragraph (c)(1) 

of this section will be deemed adequate 

only if the State mechanism is otherwise 

reasonably designed to ensure the 

availability for appointment of counsel 

who meet State standards of 

competency sufficient under paragraph 

(b) of this section. 

(d) The mechanism must provide for 

payment of reasonable litigation 

expenses of appointed counsel, which 

may include presumptive limits on 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 11713 

payment only if means are authorized 

for payment of necessary expenses 

above such limits. 

§ 26.23 Certification process. 

(a) An appropriate State official may 

request in writing that the Attorney 

General determine whether the State 

meets the requirements for certification 

under § 26.22. 

(b) Upon receipt of a State’s request 

for certification, the Attorney General 

will make the request publicly available 

on the Internet (including any 

supporting materials included in the 

request) and publish a notice in the 

Federal Register— 

(1) Indicating that the State has 

requested certification; 

(2) Identifying the Internet address at 

which the public may view the State’s 

request for certification; and 

(3) Soliciting public comment on the 

request. 

(c) The State’s request will be 

reviewed by the Attorney General. The 

review will include consideration of 

timely public comments received in 

response to the Federal Register notice 

under paragraph (b) of this section. The 

certification will be published in the 

Federal Register if certification is 

granted. The certification will include a 

determination of the date the capital 

counsel mechanism qualifying the State 

for certification was established. 

(d) A certification by the Attorney 

General reflects the Attorney General’s 

determination that the State capital 

counsel mechanism reviewed under 

paragraph (c) of this section satisfies 28 

U.S.C. chapter 154’s requirements. A 

State may request a new certification by 

the Attorney General to ensure the 

continued applicability of chapter 154 

in cases in which State postconviction 

proceedings occur after a change or 

alleged change in the State’s certified 

capital counsel mechanism. Changes in 

a State’s capital counsel mechanism do 

not affect the applicability of chapter 

154 in any case in which a mechanism 

certified by the Attorney General existed 

throughout State postconviction 

proceedings in the case. 

Dated: February 25, 2011. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2011–4800 Filed 3–2–11; 8:45 am] 

BILLING CODE 4410–18–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 141 and 142 

[Docket No. OW–2009–0090; FRL–9274–2] 

RIN 2040–AF10 

Revisions to the Unregulated 

Contaminant Monitoring Regulation 

(UCMR 3) for Public Water Systems 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The 1996 amendments to the 

Safe Drinking Water Act (SDWA) 

require that the United States 

Environmental Protection Agency (EPA 

or the Agency) establish criteria for a 

program to monitor unregulated 

contaminants and to publish a list of 

contaminants to be monitored every five 

years. This action meets the SDWA 

requirement by proposing the design for 

the third UCMR cycle (i.e., UCMR 3). 

EPA is proposing six EPA-developed 

analytical methods, and four equivalent 

consensus organization-developed 

methods to monitor for 28 new UCMR 

chemical contaminants. In addition, 

EPA proposes monitoring for two 

viruses, for a total of 30 UCMR 3 

contaminants. As envisioned, virus 

analysis (along with related analysis for 

pathogen indicators) would be 

conducted in laboratories under EPA 

contract. UCMR 3 provides EPA and 

other interested parties with 

scientifically valid data on the 

occurrence of these contaminants in 

drinking water, permitting the 

assessment of the number of people 

potentially being exposed and the levels 

of that exposure. These data are the 

primary source of occurrence and 

exposure information the Agency uses 

to determine whether to regulate these 

contaminants. In addition, as part of an 

Expedited Methods Update, this 

proposed action also would amend 

regulations concerning inorganic 

chemical sampling and analytical 

requirements. A minor editorial 

correction to the table moves methods 

from the ‘‘Other’’ column to the ‘‘ASTM’’ 

column, as it applies to the inorganic 

chemical sampling and analytical 

requirements. The UCMR program is not 

affected by these changes. 

DATES: Comments must be received on 

or before May 2, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. OW–2009– 

0090, by one of the following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• E-mail: OW–Docket@epa.gov. 

• Mail: Send three copies of your 

comments and any enclosures to: Water 

Docket, United States Environmental 

Protection Agency, Mail Code 282211T, 

1200 Pennsylvania Avenue, NW., 

Washington, DC 20460, Attention 

Docket ID No. OW–2009–0090. 

Commenters should use a separate 

paragraph for each issue discussed. In 

addition, please mail a copy of your 

comments on the information collection 

provisions to the Office of Information 

and Regulatory Affairs, Office of 

Management and Budget (OMB), Attn: 

Desk Officer for EPA, 725 17th St., NW., 

Washington, DC 20503. 

• Hand Delivery: Deliver your 

comments to Water Docket, EPA Docket 

Center, Environmental Protection 

Agency, Room 3334, 1301 Constitution 

Ave., NW., Washington, DC, Attention 

Docket ID No. OW–2009–0090. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–OW–2009–0090. 

EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 


srobinson on DSKHWCL6B1PROD with PROPOSALS