[Federal Register Volume 75, Number 225 (Tuesday, November 23, 2010)]
[Rules and Regulations]
[Pages 71353-71355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29329]


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DEPARTMENT OF JUSTICE

28 CFR Part 26

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


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

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: Pursuant to the USA PATRIOT Improvement and Reauthorization 
Act of 2005, the Department of Justice promulgated a final rule to 
implement certification procedures for States seeking to qualify for 
the special federal habeas corpus review procedures in capital cases. 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

[[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

[[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.

0
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

0
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]

0
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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