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###### Department of Justice

          - 28 CFR Part 26
          - [Docket No. OJP 1464; AG Order No.]
          - RIN 1121-AA76

# AGENCY:

Department of Justice.

# ACTION:

Final rule.

# SUMMARY:

                        Pursuant to the USA PATRIOT Improvement and Reauthorization Act of 2005, the Department of Justice promulgated a final rule to implement certification procedures for States seeking to qualify for the special federal habeas corpus review procedures in capital cases. A Federal district court issued an injunction requiring the Department to provide an additional public comment period and publish a response to any comments received during that period. The Department then solicited further                               ( print page 71354)                            public comments. By this rule, the Department is removing the December 11, 2008 regulations. The Department will issue new regulations on this subject by separate rulemaking.                    

# DATES:

*Effective Date:*                         This rule is effective December 23, 2010.                    

# FOR FURTHER INFORMATION CONTACT:

Lisa Ellman, Office of Legal Policy, at (202) 514-4601 (not a toll-free number).

# SUPPLEMENTARY INFORMATION:

## Overview

Chapter 154 of title 28, United States Code, makes special procedures available to a State respondent in Federal habeas corpus proceedings involving review of State capital convictions, but only if the Attorney General has certified “that [the] State has established a mechanism for providing counsel in postconviction proceedings as provided in section 2265,” and if “counsel was appointed pursuant to that mechanism, petitioner validly waived counsel, petitioner retained counsel, or petitioner was found not to be indigent.” 28 U.S.C. 2261(b). 28 U.S.C. 2265(a)(1) provides that, in order for a State to qualify for the special habeas procedures, the Attorney General must determine that “the State has established a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State postconviction proceedings brought by indigent [capital] prisoners” and that the State “provides standards of competency for the appointment of counsel in [such proceedings].”

Chapter 154 has been in place since the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-132), but was amended by section 507 of Public Law 109-177, the USA PATRIOT Improvement and Reauthorization Act of 2005 (“the Act”). Prior to the Act, the determination of a State's eligibility for the special procedures had been left to the Federal habeas courts. The 2005 Act amended, inter alia, sections 2261(b) and 2265 to assign 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 (June 6, 2007). The comment period ended on August 6, 2007. The Department published a notice on August 9, 2007, reopening the comment period, 72 FR 44816, and the reopened comment period ended on September 24, 2007. The final rule establishing the chapter 154 certification procedure was published on December 11, 2008, 73 FR 75327, with an effective date of January 12, 2009.                

                    The U.S. District Court for the Northern District of California preliminarily enjoined the Department “during the pendency of these proceedings from putting into effect the rule * * * without first providing an additional comment period of at least thirty days and publishing a response to any comments received during such period.”                     *Habeas Corpus Resource Center*                     v.                    *United States Dep't of Justice,*                     No. 08-2649, 2009 WL 185423, at *10 (N.D. Calif. Jan. 20, 2009). Further public comment was solicited, 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 has determined that chapter 154 reasonably could be construed to allow the Attorney General greater discretion in making certification determinations than the December 11, 2008 regulations allowed. For instance, chapter 154 reasonably could be construed to permit the Attorney General to determine, within certain bounds, whether a state's competency standards and counsel appointment mechanism (including compensation standards) are adequate to achieve chapter 154's objectives.

                    Therefore, the Department published a notice in the                     **Federal Register**                     on May 25, 2010, proposing to remove the December 11, 2008 regulations pending the completion of a new rulemaking process, during which the Department will further consider what standards and procedures are appropriate. 75 FR 29217. The comment period closed on June 24, 2010.                

## Summary of Comments

Eight comments were received in response to the notice proposing to remove the December 11, 2008 regulations.

Two U.S. Senators, Federal Public Defenders, a California capital defense agency, and a number of other organizations submitted comments supporting removal of the existing rule. These comments were critical of the existing regulations and included recommendations concerning the development or formulation of a replacement rule.

The Criminal Justice Legal Foundation submitted comments that recommended not removing the portions of the existing rule concerned with certification procedures, on the ground that present dissatisfaction by the Department with the section of the existing rule concerning the substantive criteria a state must meet to be certified under chapter 154—i.e., 28 CFR 26.22—could at most justify rescinding that section alone. The commenter accordingly urged that 28 CFR 26.20, 26.21, and 26.23 should be implemented without delay, and that any further delay would violate the Department's duty to victims of crime.

The creation of a process for States to apply for chapter 154 certification is only part of the Attorney General's responsibilities under chapter 154, and it makes little sense to retain that process in the absence of substantive certification criteria. If applications are submitted, the Attorney General must then decide whether the submitting States satisfy the requirements for chapter 154 certification. Section 26.22 in the existing rule reflected the Department's understanding of those requirements at the time the rule was published. However, the Department has since reconsidered that understanding, including the rule's assumption that the formulation of counsel competency and compensation standards for purposes of chapter 154 certification is a matter of state discretion and subject to very little, if any, further review by the Attorney General.

                    The Department believes that the process for considering and deciding States' applications for chapter 154 certification is best promulgated concurrently with a rule setting forth the standards for a State to meet chapter 154's requirements. The Attorney General will need to decide what standards he will apply in assessing whether State capital counsel systems are adequate to satisfy the chapter 154 requirements. States correspondingly will need to know what standards the Attorney General will apply in order to frame those applications intelligently, and in order to make any necessary changes in their capital counsel systems prior to applying for Attorney General certification. Likewise, members of the public will need to know what standards the Attorney General will apply in order to provide relevant input concerning the adequacy of State                           ( print page 71355)                        applications.                     *Cf.*28 CFR 26.23(c)-(d) (providing for receipt and consideration of public comment on State applications for chapter 154 certification).                

Accordingly, removal of the entire December 11, 2008 final rule at this time is warranted in order to allow the Attorney General to articulate the standards he will apply in making chapter 154 certification decisions and to obtain public input concerning the formulation of such standards. Pending the completion of a new rulemaking process, receipt and consideration of applications for chapter 154 certification cannot sensibly go forward in the absence of articulated standards for deciding such applications.

## Regulatory Certifications

### Executive Order 12866

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 not a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this rule has not been reviewed by the Office of Management and Budget.

### Executive Order 13132

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. This rule merely removes the December 11, 2008 regulations. 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 sections 3(a) and 3(b)(2) of Executive Order 12988.

### Regulatory Flexibility Act

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

### Unfunded Mandates Reform Act of 1995

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

### 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, or innovation, or on 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 amended as follows:

# PART 26—DEATH SENTENCES PROCEDURES

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

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

# Subpart B—[Removed and Reserved]

2. Subpart B is removed and reserved. 

Dated: November 15, 2010.

Eric H. Holder, Jr.,

Attorney General.

[FR Doc. 2010-29329 Filed 11-22-10; 8:45 am]

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