Federal Register / Vol. 77, No. 29 / Monday, February 13, 2012 / Proposed Rules 7559 

DEPARTMENT OF JUSTICE 

28 CFR Part 26 

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

3322–2012] 

RIN 1121–AA77 

Certification Process for State Capital 

Counsel Systems 

AGENCY: Department of Justice. 

ACTION: Supplemental notice of 

proposed rulemaking. 

SUMMARY: Section 2265 of title 28, 

United States Code, instructs the 

Attorney General to promulgate 

regulations establishing a certification 

procedure for States seeking to qualify 

for the special Federal habeas corpus 

review provisions for capital cases 

under chapter 154 of title 28. The 

benefits of chapter 154—including 

expedited timing and limits on the 

scope of Federal habeas review of State 

judgments—are available to States on 

the condition that they provide counsel 

to indigent capital defendants in State 

postconviction proceedings pursuant to 

mechanisms that satisfy certain 

statutory requirements. This 

supplemental notice of proposed 

rulemaking (supplemental notice) 

requests public comment concerning 

five changes that the Department is 

considering to a previously published 

proposed rule for the chapter 154 

certification procedure. 

DATES: Comments must be submitted on 

or before March 14, 2012. Comments 

received by mail will be considered 

timely if they are 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 supplemental 

notice at http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Caroline T. Nguyen, 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 a name 

and address) voluntarily submitted by 

the commenter. 

You are not required to submit 

personal identifying information in 

order to comment. 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. 

Background 

Chapter 154 of title 28, United States 

Code, makes special expedited 

procedures available to a State 

respondent in Federal habeas corpus 

proceedings involving review of State 

capital judgments, and limits the scope 

of Federal court review of such 

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) (2006). 

Section 2265(a)(1) provides that, if 

requested by an appropriate State 

official, the Attorney General must 

determine whether ‘‘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 

whether the State ‘‘provides standards 

of competency for the appointment of 

counsel in [such proceedings].’’ Section 

2265(b) directs the Attorney General to 

promulgate regulations to implement 

procedures for making the necessary 

determinations and certifying States 

accordingly. 

The Attorney General published a 

proposed rule for the chapter 154 

certification procedure in the Federal 

Register on March 3, 2011, at 76 FR 

11705. The comment period for the 

proposed rule closed on June 1, 2011. 

The Department received approximately 

30 comments concerning both the 

general approach and specific 

provisions of the proposed rule. In 

response to those comments, the 

Department is considering certain 

modifications to the proposed rule, 

including five modifications described 

in this supplemental notice. 

Request for Comments 

This supplemental notice solicits 

public comment on five potential 

changes to the proposed rule published 

on March 3. Each of these five proposed 

changes derives from comments 

received in response to the publication 

of that proposed rule. The Department 

solicits additional public views to 

provide all interested parties, including 

those who did not previously comment, 

an opportunity to provide input on 

these specific possible changes. The 

specific changes under consideration 

are (1) modifying the proposed rule’s 

first counsel competency standard, 

§ 26.22(b)(1), which sets as a benchmark 

five years of bar admission and three 

years of felony litigation experience, to 

substitute postconviction experience for 

felony litigation experience; (2) 

modifying the second counsel 

competency standard, § 26.22(b)(2), 

which incorporates as a benchmark 

certain provisions of the Innocence 

Protection Act of 2004, Public Law 108– 

405, Title IV, § 421, 118 Stat. 2286, 

codified at 42 U.S.C. 14163(e)(1) and 

(2)(A), to incorporate as well other 

provisions of section 14163(e)(2), 

specifically, subparagraphs (B), (D), and 

(E); (3) specifying that a mechanism for 

providing competent counsel in 

postconviction proceedings must 

encompass a policy for the timely 

provision of counsel to satisfy chapter 

154; (4) providing that the Attorney 

General will presumptively certify a 

mechanism that meets the standards set 

out in the rule; and (5) providing for 

periodic renewal of certifications. 


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7560 Federal Register / Vol. 77, No. 29 / Monday, February 13, 2012 / Proposed Rules 

This supplemental notice is limited to 

solicitation of additional comment on 

the matters described herein. 

Commenters need not reiterate or 

resubmit comments in response to this 

supplemental notice that they 

previously submitted relating to these 

matters or other aspects of the proposed 

rule. All public comments submitted 

pursuant to the proposed rule published 

on March 3, 2011, and in response to 

this supplemental notice will be fully 

considered when the Department 

prepares the final rule. 

Proposed Change 1: Postconviction 

Experience 

Section 26.22(b)(1) of the proposed 

rule provides that 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.’’ 76 FR at 11712. 

The Department solicits comment on 

the suggestion to change this provision 

to set a standard of five years of bar 

admission and three years of 

postconviction litigation (instead of 

felony litigation) experience. In 

particular, the Department solicits 

comment on whether three years of 

postconviction litigation experience is 

an appropriate measure of competency 

in postconviction proceedings and 

whether more years, fewer years, or 

alternative measures would constitute a 

more appropriate benchmark. 

The benchmark in the proposed rule 

is based on 18 U.S.C. 3599, pertaining 

to appointment of counsel in Federal 

court proceedings in capital cases. That 

provision sets out a standard of three 

years of felony trial experience for 

appointments made before judgment 

and three years of felony appellate 

experience for appointments made after 

judgment. The proposed rule 

incorporates neither of these specialized 

experience standards, but instead sets a 

benchmark of three years of felony 

litigation experience of any sort. The 

Department is considering substituting 

for that benchmark three years of 

postconviction litigation experience as 

the form of experience most relevant 

and most necessary to the litigation of 

State postconviction petitions. 

In construing chapter 154, a number 

of courts have concluded that, given the 

complexity of postconviction law and 

procedure, a qualifying mechanism for 

the appointment of competent counsel 

should provide for counsel with 

specialized postconviction litigation 

experience. See, e.g., Colvin-El v. Nuth, 

No. Civ.A. AW 97–2520, 1998 WL 

386403, at *6 (D. Md. July 6, 1998) 

(‘‘Given the extraordinarily complex 

body of law and procedure unique to 

post-conviction review, an attorney 

must, at minimum, have some 

experience in that area before he or she 

is deemed ‘competent.’ ’’). Similarly, the 

Judicial Conference of the United States 

has recognized the value and 

importance of specialized experience 

when confronting the complexity of 

postconviction representation and the 

risk of irremediable procedural default. 

See Judicial Conference of the United 

States, Committee on Defender Services, 

Subcommittee on Federal Death Penalty 

Cases, Federal Death Penalty Cases: 

Recommendations Concerning the Cost 

and Quality of Defense Representation 

21 (May 1998) (recommending that 

appointing authorities ‘‘consider the 

attorney’s experience in federal postconviction proceedings and in capital 

post-conviction proceedings’’); see also 

Jon B. Gould & Lisa Greenman, Report 

to the Committee on Defender Services 

Judicial Conference of the United States: 

Update on the Cost and Quality of 

Defense Representation in Federal 

Death Penalty Cases 88 (Sep. 2010) 

(noting the view of postconviction 

specialists that there is ‘‘little time 

available for inexperienced counsel to 

‘learn the ropes,’ and no safety net if 

they fail’’). 

At the same time, it is possible that 

some lawyers may be capable of 

providing competent counsel even 

without such postconviction 

experience. Accordingly, as in 

§ 26.22(b)(1) of the proposed rule, a 

modified version of the provision with 

a postconviction experience standard 

could continue to include an exception 

allowing appointment of other counsel 

whose background, knowledge, or 

experience would otherwise enable him 

or her to properly represent the 

defendant. Cf. 18 U.S.C. 3599(d); Spears 

v. Stewart, 283 F.3d 992, 1011, 1013 

(9th Cir. 2002) (finding State 

competency standards generally 

requiring postconviction litigation 

experience, but allowing some 

exception, adequate under chapter 154); 

Ashmus v. Calderon, 123 F.3d 1199, 

1208 (9th Cir. 1997) (recognizing that 

‘‘habeas corpus law is complex and has 

many procedural pitfalls’’ but 

concluding that it is not necessary 

under chapter 154 that every lawyer 

have postconviction experience), rev’d 

on other grounds, 523 U.S. 740 (1998). 

Proposed Change 2: Innocence 

Protection Act (IPA) 

Section 26.22(b)(2) of the proposed 

rule provides that 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 

‘‘meeting qualification standards 

established in conformity with 42 U.S.C. 

14163(e)(1) [and] (2)(A).’’ 76 FR at 

11712. The Department solicits 

comments on the suggestion of 

modifying § 26.22(b)(2) in the proposed 

rule to incorporate not only section 

14163(e)(1) and (2)(A), but all of the 

subparagraphs of that section that bear 

directly on counsel qualifications— 

specifically, subparagraphs (2)(B), (D), 

and (E). 

Subparagraphs (B), (D), and (E) 

require maintenance of a roster of 

qualified attorneys; provision or 

approval of specialized training 

programs for attorneys representing 

defendants in capital cases; monitoring 

of the performance of attorneys who are 

appointed and their attendance at 

training programs to ensure continued 

competence; and removal from the 

roster of attorneys who fail to deliver 

effective representation or engage in 

unethical conduct. 42 U.S.C. 

14163(e)(2). Those provisions are 

integral elements of the IPA’s 

comprehensive approach to counsel 

qualifications. Under the modification 

now being considered by the 

Department, to the extent that the rule 

uses the IPA standard as a benchmark 

for counsel competency, it would 

incorporate all directly relevant 

elements of that Act. 

Proposed Change 3: Timely Provision of 

Competent Counsel 

The Department solicits comments on 

a proposal to specify that a State capital 

counsel mechanism must encompass a 

policy for the timely provision of 

competent counsel in order to be 

certified as an adequate ‘‘mechanism for 

the appointment * * * of competent 

counsel in State postconviction 

proceedings’’ under chapter 154. 28 

U.S.C. 2265(1)(A). The Department 

recognizes that States should be given 

significant latitude in designing their 

capital counsel mechanisms and 

therefore does not propose to define 

timeliness in terms of a specific number 

of days or weeks within which counsel 

is to be provided. Instead, the 

Department is considering only 

clarification that the mechanism must 

provide for affording counsel to indigent 

capital defendants in State 

postconviction proceedings in a manner 

that is reasonably timely, in light of the 

statutes of limitations governing both 

State and Federal collateral review and 

the effort involved in the investigation, 

research, and filing of effective habeas 

petitions, to protect a petitioner’s right 

to meaningful habeas review. 


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Federal Register / Vol. 77, No. 29 / Monday, February 13, 2012 / Proposed Rules 7561 

Many comments raised the concern 

that the proposed rule does not address 

the timing of counsel appointment and 

asserted that such failure is particularly 

troubling in light of the expedited 

Federal habeas procedures under 

chapter 154. Section 2263, for example, 

generally requires the filing of a Federal 

habeas corpus petition within 180 days 

of the completion of direct State court 

review of the conviction and sentence, 

a period substantially shorter than in 

other Federal habeas cases. Compare 28 

U.S.C. 2263(a) (180 days), with 

§ 2444(d)(1) (one-year deadline); 

§ 2255(f) (same). (Section 2263 also 

provides for tolling during the pendency 

of both a petition for certiorari to the 

Supreme Court (following direct review 

in State courts) and State collateral 

proceedings. § 2263 (b).) And section 

2266 restricts the ability to amend a 

Federal habeas petition after it has been 

filed. § 2266(b)(3)(B). 

The comments raise an important 

issue for consideration. Chapter 154 

involves a quid pro quo arrangement 

under which the right to representation 

by counsel is extended to State 

postconviction proceedings for capital 

defendants, and in return Federal 

habeas review is carried out with 

generally more limited time frames and 

scope following the State postconviction 

proceedings in which counsel has been 

made available. If a State capital counsel 

mechanism provided for the provision 

of counsel to represent indigent capital 

defendants only after the deadline for 

pursuing State postconviction 

proceedings had passed; or only after 

the expiration of section 2263’s time 

limit for Federal habeas filing; or only 

after such delay that the time available 

for preparing for and pursuing either 

State or Federal postconviction review 

had been seriously eroded, then the 

mechanism would not appear to provide 

for appointment of postconviction 

counsel as required under chapter 154, 

even if the State mechanism otherwise 

tracked the appointment procedures set 

forth in § 26.22(a) of the proposed rule. 

Since chapter 154’s enactment in 1996, 

when Federal habeas courts were 

charged with evaluating the sufficiency 

of state mechanisms (amendments to the 

statute in 2006 transferred that function 

to the Attorney General), a number of 

courts have concluded that chapter 154 

required that the mechanism provide for 

timely appointment of counsel. See, e.g., 

Brown v. Puckett, No. 3:01–CV–197–D, 

2003 WL 21018627, at *3 (N.D. Miss. 

Mar. 12, 2003) (‘‘The timely 

appointment of counsel at the 

conclusion of direct review is an 

essential requirement in the opt-in 

structure. Because the abbreviated 180- 

day statute of limitations begins to run 

immediately upon the conclusion of 

direct review, time is of the essence. 

Without a requirement for the timely 

appointment of counsel, the system is 

not in compliance.’’); Ashmus v. 

Calderon, 31 F. Supp. 2d 1175, 1186–87 

(N.D. Cal. 1998) (construing chapter 154 

to require timely appointment in part 

because ‘‘the legislative history is clear 

that actual and expeditious appointment 

[of counsel] was expected’’ and 

‘‘effective and competent habeas 

representation is compromised by long 

delays’’); Hill v. Butterworth, 941 F. 

Supp. 1129, 1147 (N.D. Fla. 1996), rev’d 

on other grounds, 147 F.3d 1333 (11th 

Cir. 1998) (‘‘[T]he Court holds that any 

offer of counsel pursuant to Section 

2261 must be a meaningful offer. That 

is, counsel must be immediately 

appointed after a capital defendant 

accepts the state’s offer of postconviction counsel.’’). Accordingly, the 

Department is considering specifying in 

the final rule that a mechanism, to be 

certified under section 2265, must 

encompass a policy for the timely 

provision of competent counsel. 

Proposed Change 4: Effect on 

Certification of Compliance With 

Benchmarks 

The Department is considering 

amending § 26.22(b) and (c) of the 

proposed rule to state that the Attorney 

General will ‘‘presumptively’’ certify 

that a State has established a sufficient 

mechanism for the appointment of 

competent counsel if he determines that 

the mechanism satisfies the specific 

standards for competency and 

compensation set out in the remainder 

of those paragraphs. So revised, the rule 

would continue to provide guidance to 

the States regarding approaches that are 

likely to be sufficient to warrant 

certification, while also allowing the 

Attorney General to consider whether 

the presumption that the standards 

described in the rule are adequate may 

be overcome in light of unusual 

circumstances presented by a particular 

State system. 

Many commenters expressed concern 

that under the proposed rule, the 

Attorney General must certify a State’s 

mechanism so long as it meets 

competence and compensation 

benchmarks identified in the proposed 

rule, even if it can be shown that in the 

context of the State in which it operates, 

the mechanism is not adequate. That 

concern is separate from criticism that 

the proposed rule fails to provide for 

oversight of a State’s compliance with 

its own mechanism over time; the 

Department remains of the view that 

whether a State has complied with its 

mechanism in an individual case is a 

question the statute assigns to the 

Federal habeas courts, not to the 

Attorney General. See 28 U.S.C. 

2261(b)(2). The distinct concern at issue 

here arises from the seemingly 

categorical statement in the proposed 

rule that the ‘‘Attorney General will 

certify’’ a State’s mechanism upon 

determination that it satisfies a relevant 

benchmark, see 76 FR at 11712 

(emphasis added), which does not 

appear to allow for any additional 

evaluation by the Attorney General of 

whether the mechanism, as 

implemented in the particular State, is 

in fact reasonably likely to lead to the 

timely provision of competent counsel 

to State habeas petitioners. 

The comments raise an issue that 

should be considered. The Department 

continues to believe that compliance 

with the competence and compensation 

benchmarks identified in the proposed 

rule, subject to modifications discussed 

herein, and the proposed specification 

that a mechanism include a policy on 

timeliness, are likely to result in the 

timely provision of competent counsel. 

But the comments seemed persuasive 

that it may not be possible to predict 

with certainty that these benchmarks 

will be adequate in the context of every 

possible State capital counsel system. 

For example, in the context of a 

particular State and its distinctive 

market conditions for legal services, it is 

conceivable that what normally should 

be sufficient compensation may not in 

fact be reasonably likely to make 

competent lawyers available for timely 

provision to capital petitioners in State 

habeas proceedings. Modification of the 

rule as indicated would afford the 

Attorney General latitude to consider 

such circumstances and other similar 

State-specific circumstances in making 

certification decisions. See 

Memorandum for the Attorney General 

from David J. Barron, Acting Assistant 

Attorney General, Office of Legal 

Counsel, Re: The Attorney General’s 

Authority in Certifying Whether a State 

Has Satisfied the Requirements for 

Appointment of Competent Counsel for 

Purposes of Capital Conviction Review 

Proceedings at 2 (Dec. 16, 2009) (‘‘[T]he 

statutory provisions in question may 

reasonably be construed to permit you 

to evaluate a State’s appointment 

mechanism—including the level of 

attorney compensation—to assess 

whether it is adequate for purposes of 

ensuring that the state mechanism will 

result in the appointment of competent 

counsel.’’). 


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7562 Federal Register / Vol. 77, No. 29 / Monday, February 13, 2012 / Proposed Rules 

Proposed Change 5: Renewal of 

Certifications 

The Department solicits comments on 

a proposal to specify that a certification 

under chapter 154 is effective for a 

specified term of years. This proposal is 

responsive to many comments pointing 

out that changed circumstances may 

affect whether a once-certified 

mechanism continues to be adequate for 

purposes of ensuring the availability for 

appointment of competent counsel. At 

the time a State applies for certification, 

for example, its provisions authorizing 

compensation at a specified hourly rate 

may be sufficient to achieve this 

objective. But after the passage of years, 

that may no longer be the case in light 

of inflation or other changed economic 

circumstances. Cf. Durable Mfg. Co. v. 

United States Dep’t of Labor, 578 F.3d 

497, 501–02 (7th Cir. 2009) (upholding 

time limitation of validity of labor 

certificates in light of possible 

subsequent changes in economic 

circumstances affecting consistency 

with statutory requirements and 

objectives). Similarly, changes in 

various State policies that may affect the 

mechanism’s operation, or new 

statutory provisions or legal precedent 

relating to attorney competence, 

compensation, or reasonable litigation 

expenses, may bear on the continued 

adequacy of the mechanism. Providing 

some limitation on the lifespan of 

certifications and requiring renewal of 

certifications would allow questions 

regarding continued compliance with 

chapter 154 to be reexamined at regular 

intervals, each time with increased 

information about a State’s actual 

experience with its mechanism, rather 

than assuming that a once-compliant 

State system is compliant indefinitely. 

At the same time, it is possible that 

overly stringent limitations on the 

duration of certifications could unduly 

burden States and disserve chapter 

154’s objectives by discouraging States 

from undertaking the effort to establish 

compliant mechanisms and seek their 

certification. Balancing the need for 

examination of continued compliance 

with the need to provide States with a 

substantial period of certainty, the 

Department is considering a term of five 

years for certifications, which would 

begin to run only after completion of 

both the certification process by the 

Attorney General and any related 

judicial review. See 28 U.S.C. 2265(c) 

(providing for DC Circuit review of 

certification decisions). The final rule 

could also provide that if a State 

requests renewal of the certification at 

or before the end of the five-year period, 

the initial certification would remain 

effective until completion of the 

renewal process and any related judicial 

review. Thus, a State that achieves 

certification of its mechanism would 

enjoy the uninterrupted benefits of 

chapter 154 for the full term of five 

years. The Department seeks comment 

on the merits and substance of a 

renewal requirement, including whether 

five years is an appropriate term of years 

during which a certification should be 

effective, or whether that term of years 

should be longer or shorter. 

Regulatory Certifications 

Executive Orders 12866 and 13563— 

Regulatory Review 

This regulation has been drafted and 

reviewed in accordance with Executive 

Order 12866, ‘‘Regulatory Planning and 

Review,’’ section 1(b), Principles of 

Regulation, and in accordance with 

Executive Order 13563, ‘‘Improving 

Regulation and Regulatory Review,’’ 

section 1(b), General 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. 

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 the 

distribution of power and 

responsibilities among the various 

levels of government. It only requests 

public comment on possible changes in 

a previously published proposed rule 

regarding the certification procedure 

under chapter 154 of title 28, 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. It 

only requests public comment on 

possible changes in a previously 

published proposed rule regarding the 

certification procedure under chapter 

154 of title 28, 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. 

Dated: February 6, 2012. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2012–3293 Filed 2–10–12; 8:45 am] 

BILLING CODE 4410–18–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Parts 385, 390, and 395 

[Docket No. FMCSA–2010–0167] 

RIN 2126–AB20 

Electronic On-Board Recorders and 

Hours of Service Supporting 

Documents 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of intent. 

SUMMARY: FMCSA announces its intent 

to move forward with the Electronic OnBoard Recorders and Hours of Service 

Supporting Documents rulemaking 

(EOBR 2) by preparing a Supplemental 

Notice of Proposed Rulemaking 

(SNPRM). To augment the Agency’s 

efforts to obtain comprehensive data to 

support this SNPRM, FMCSA plans to 

do the following: hold listening sessions 

on the issue of driver harassment; task 

the Motor Carrier Safety Advisory 

Committee (MCSAC) to assist in 

developing material to support this 


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