Federal Register / Vol. 75, No. 100 / Tuesday, May 25, 2010 / Proposed Rules 29217 

Section of OMB guidance 

Section in this 

part where supplemented What the supplementation clarifies 

(2) 2 CFR 182.300(b) ............... § 1329.300 ........ Whom in the Department of Commerce a recipient who is an individual must notify if he or 

she is convicted of a criminal drug offense resulting from a violation occurring during the 

conduct of any award activity. 

(3) 2 CFR 182.500 ................... § 1329.500 ........ Who in the Department of Commerce is authorized to determine that a recipient other than 

an individual is in violation of the requirements of 2 CFR part 182, as implemented by 

this Part. 

(4) 2 CFR 182.505 ................... § 1329.505 ........ Who in the Department of Commerce is authorized to determine that a recipient who is an 

individual is in violation of the requirements of 2 CFR part 182, as implemented by this 

Part. 

(c) Sections of the OMB guidance that 

this part does not supplement. For any 

section of OMB guidance in subparts A 

through F of 2 CFR part 182 that is not 

listed in paragraph (b) of this section, 

Department of Commerce policies and 

procedures are the same as those in the 

OMB guidance. 

Subpart A—[Reserved] 

Subpart B—Requirements for 

Recipients Other Than Individuals 

§ 1329.225 Whom in the Department of 

Commerce does a recipient other than an 

individual notify about a criminal drug 

conviction? 

A recipient other than an individual 

that is required under 2 CFR 182.225(a) 

to notify Federal agencies about an 

employee’s conviction for a criminal 

drug offense must notify each 

Department of Commerce office from 

which it currently has an award. 

Subpart C—Requirements for 

Recipients Who Are Individuals 

§ 1329.300 Whom in the Department of 

Commerce does a recipient who is an 

individual notify about a criminal drug 

conviction? 

A recipient who is an individual and 

is required under 2 CFR 182.300(b) to 

notify Federal agencies about a 

conviction for a criminal drug offense 

must notify each Department of 

Commerce office from which it 

currently has an award. 

Subpart D—Responsibilities of Agency 

Awarding Officials 

§ 1329.400 What method do I use as an 

agency awarding official to obtain a 

recipient’s agreement to comply with the 

OMB guidance? 

To obtain a recipient’s agreement to 

comply with applicable requirements in 

the OMB guidance at 2 CFR part 182, 

you must include the following term or 

condition in the award: 

Drug-free workplace. You as the 

recipient must comply with drug-free 

workplace requirements in subpart B (or 

subpart C, if the recipient is an 

individual) of 2 CFR part 1329, which 

adopts the Governmentwide 

implementation (2 CFR part 182) of sec. 

5152–5158 of the Drug-Free Workplace 

Act of 1988 (Pub. L. 100–690, Title V, 

Subtitle D; 41 U.S.C. 701–707). 

Subpart E—Violations of This Part and 

Consequences 

§ 1329.500 Who in the Department of 

Commerce determines that a recipient other 

than an individual violated the requirements 

of this Part? 

The Secretary of Commerce or 

designee. 

§ 1329.505 Who in the Department of 

Commerce determines that a recipient who 

is an individual violated the requirements of 

this Part? 

The Secretary of Commerce or 

designee. 

Subpart F—Definitions [Reserved] 

Title 15, Commerce and Foreign Trade 

PART 29—[REMOVED AND 

RESERVED] 

2. Remove and reserve part 29. 

[FR Doc. 2010–12536 Filed 5–24–10; 8:45 am] 

BILLING CODE 3510–03–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 26 

[Docket No. OJP 1464; AG Order No. 3157– 

2010] 

RIN 1121–AA76 

Office of the Attorney General; 

Certification Process for State Capital 

Counsel Systems; Removal of Final 

Rule 

AGENCY: Office of the Attorney General, 

Department of Justice. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: Pursuant to the USA 

PATRIOT Improvement and 

Reauthorization Act of 2005, the 

Department of Justice promulgated a 

final rule to implement certification 

procedures for States seeking to qualify 

for the special Federal habeas corpus 

review procedures in capital cases 

afforded under chapter 154 of title 28 of 

the United States Code. See Certification 

Process for State Capital Counsel 

Systems, 73 FR 75327 (Dec. 11, 2008). 

A Federal district court issued an 

injunction requiring the Department to 

provide an additional public comment 

period and publish a response to any 

comments received during that period. 

The Department then solicited further 

public comments. By this proposed rule, 

the Department is proposing to remove 

the December 11, 2008 regulations. The 

Department will issue new regulations 

on this subject by separate rulemaking 

after the December 2008 regulations are 

removed. 

DATES: Written comments must be 

postmarked and electronic comments 

must be submitted on or before June 24, 

2010. Commenters should be aware that 

the electronic Federal Docket 

Management System will not accept 

comments after Midnight Eastern Time 

on the last day of the comment period. 

ADDRESSES: Comments may be mailed to 

Regulations Docket Clerk, Office of 

Legal Policy, Department of Justice, 950 

Pennsylvania Avenue, NW., Room 4234, 

Washington, DC 20530. To ensure 

proper handling, please reference OAG 

Docket No. 1464 on your 

correspondence. You may submit 

comments electronically or view an 

electronic version of this proposed rule 

at http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Molly J. Moran, Office of Legal Policy, 

at (202) 514–4601 (not a toll-free 

number). 

SUPPLEMENTARY INFORMATION: 

Posting of Public Comments. Please 

note that all comments received are 

considered part of the public record and 

made available for public inspection 

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

Such information includes personal 

identifying information (such as your 

name, address, etc.) voluntarily 

submitted by the commenter. 

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29218 Federal Register / Vol. 75, No. 100 / Tuesday, May 25, 2010 / Proposed Rules 

If you want to submit personal 

identifying information (such as your 

name, address, etc.) as part of your 

comment, but do not want it to be 

posted online, you must include the 

phrase ‘‘PERSONAL IDENTIFYING 

INFORMATION’’ in the first paragraph 

of your comment. You also must locate 

all the personal identifying information 

you do not want posted online in the 

first paragraph of your comment and 

identify what information you want 

redacted. 

If you want to submit confidential 

business information as part of your 

comment but do not want it to be posted 

online, you must include the phrase 

‘‘CONFIDENTIAL BUSINESS 

INFORMATION’’ in the first paragraph 

of your comment. You also must 

prominently identify confidential 

business information to be redacted 

within the comment. If a comment has 

so much confidential business 

information that it cannot be effectively 

redacted, all or part of that comment 

may not be posted on http:// 

www.regulations.gov. 

Personal identifying information and 

confidential business information 

identified and located as set forth above 

will be placed in the agency’s public 

docket file, but not posted online. If you 

wish to inspect the agency’s public 

docket file in person by appointment, 

please see the FOR FURTHER INFORMATION

CONTACT paragraph. 

The reason the Department is 

requesting electronic comments before 

Midnight Eastern Time on the day the 

comment period closes is that the interagency Regulations.gov/Federal Docket 

Management System (FDMS), which 

receives electronic comments, 

terminates the public’s ability to submit 

comments at Midnight on the day the 

comment period closes. Commenters in 

time zones other than Eastern may want 

to take this fact into account so that 

their electronic comments can be 

received. The constraints imposed by 

the Regulations.gov/FDMS system do 

not apply to U.S. postal comments, 

which will be considered as timely filed 

if they are postmarked before Midnight 

on the day the comment period closes. 

Overview 

Chapter 154 of title 28, United States 

Code, makes special procedures 

available to a State respondent in 

Federal habeas corpus proceedings 

involving review of State capital 

convictions, but only if the Attorney 

General has certified ‘‘that [the] State 

has established a mechanism for 

providing counsel in postconviction 

proceedings as provided in section 

2265,’’ and if ‘‘counsel was appointed 

pursuant to that mechanism, petitioner 

validly waived counsel, petitioner 

retained counsel, or petitioner was 

found not to be indigent.’’ 28 U.S.C. 

2261(b). 28 U.S.C. 2265(a)(1) provides 

that, in order for a State to qualify for 

the special habeas procedures, the 

Attorney General must determine that 

‘‘the State has established a mechanism 

for the appointment, compensation, and 

payment of reasonable litigation 

expenses of competent counsel in State 

postconviction proceedings brought by 

indigent [capital] prisoners’’ and that the 

State ‘‘provides standards of competency 

for the appointment of counsel in [such 

proceedings].’’ 

Chapter 154 has been in place since 

the enactment of the Antiterrorism and 

Effective Death Penalty Act of 1996 

(Pub. L. 104–132), but was amended by 

section 507 of Public Law 109–177, the 

USA PATRIOT Improvement and 

Reauthorization Act of 2005 (‘‘the Act’’). 

Prior to the Act, the determination of a 

State’s eligibility for the special habeas 

procedures had been left to the Federal 

habeas courts. The 2005 Act amended, 

inter alia, sections 2261(b) and 2265 of 

title 28 to assign responsibility for 

chapter 154 certifications to the 

Attorney General of the United States, 

subject to de novo review by the U.S. 

Court of Appeals for the District of 

Columbia Circuit. 

Rulemaking History 

Section 2265(b) directs the Attorney 

General to promulgate regulations to 

implement the certification procedure. 

To fulfill this mandate, the Department 

of Justice published a proposed rule in 

the Federal Register on June 6, 2007, 

that proposed adding a new subpart 

entitled ‘‘Certification Process for State 

Capital Counsel Systems’’ to 28 CFR part 

26. 72 FR 31217 (June 6, 2007). The 

comment period ended on August 6, 

2007. The Department published a 

notice on August 9, 2007, reopening the 

comment period, 72 FR 44816, and the 

reopened comment period ended on 

September 24, 2007. The final rule 

establishing the chapter 154 

certification procedure was published 

on December 11, 2008, 73 FR 75327, 

with an effective date of January 12, 

2009. 

The U.S. District Court for the 

Northern District of California 

preliminarily enjoined the Department 

‘‘during the pendency of these 

proceedings from putting into effect the 

rule * * * without first providing an 

additional comment period of at least 

thirty days and publishing a response to 

any comments received during such 

period.’’ Habeas Corpus Res. Ctr. v. 

United States Dep’t of Justice, No. 08– 

2649, 2009 WL 185423, at *10 (Jan. 20, 

2009). Further public comment was 

solicited, with the comment period 

closing on April 6, 2009. 74 FR 6131. 

The Department has reviewed, but has 

not yet published a response to, this 

latest round of public comments. 

Review of Additional Comments 

As the Department reviewed the 

submitted comments, it considered 

further the statutory requirements 

governing the regulatory 

implementation of the chapter 154 

certification procedures. The Attorney 

General has determined that chapter 154 

reasonably could be construed to allow 

the Attorney General greater discretion 

in making certification determinations 

than the December 11, 2008 regulations 

allowed. For instance, chapter 154 

reasonably could be construed to permit 

the Attorney General to make 

certification determinations based on a 

minimum Federal standard of counsel 

competency, so long as that standard 

leaves the States sufficient discretion in 

establishing and applying their own 

counsel competency standards, and to 

certify only those State mechanisms that 

are adequate (including by providing 

sufficient compensation) to ensure the 

appointment of counsel who meet this 

Federal standard. In light of the 

availability of this discretion and 

concerns that the December 11, 2008 

regulations unduly constrain it, the 

Attorney General has determined that 

those regulations should not bind him 

in making certification determinations 

pending the promulgation of a new rule. 

Therefore, by this proposed rule, the 

Department is proposing to remove the 

December 11, 2008 regulations pending 

the completion of a new rulemaking 

process, during which the Department 

will further consider what certification 

procedures are appropriate. 

Regulatory Certifications 

Executive Order 12866—Regulatory 

Planning and Review 

This action has been drafted and 

reviewed in accordance with Executive 

Order 12866 Regulatory Planning and 

Review, § 1(b), Principles of Regulation. 

The Department of Justice has 

determined that this rule is a 

‘‘significant regulatory action’’ under 

Executive Order 12866, section 3(f), 

Regulatory Planning and Review, and, 

accordingly, this rule has been reviewed 

by the Office of Management and 

Budget. 

Executive Order 13132—Federalism 

This regulation will not have 

substantial direct effects on the States, 

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Federal Register / Vol. 75, No. 100 / Tuesday, May 25, 2010 / Proposed Rules 29219 

on the relationship between the national 

government and the States, or on 

distribution of power and 

responsibilities among the various 

levels of government. This proposed 

rule merely proposes to remove the 

December 11, 2008 regulations. 

Therefore, in accordance with Executive 

Order 12612, it is determined that this 

rule does not have sufficient federalism 

implications to warrant the preparation 

of a Federalism Assessment. 

Executive Order 12988—Civil Justice 

Reform 

This regulation meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

Regulatory Flexibility Act 

The Attorney General, in accordance 

with the Regulatory Flexibility Act (5 

U.S.C. 605(b)), has reviewed this 

regulation and by approving it certifies 

that this regulation will not have a 

significant economic impact on a 

substantial number of small entities. 

This proposed rule merely proposes to 

remove the December 11, 2008 

regulations. 

Unfunded Mandates Reform Act of 1955 

This rule will not result in the 

expenditure by State, local and Tribal 

governments, in the aggregate, or by the 

private sector, of $100,000,000 or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

List of Subjects in 28 CFR Part 26 

Law enforcement officers, Prisoners. 

Accordingly, for the reasons set forth 

in the preamble, part 26 of chapter I of 

title 28 of the Code of Federal 

Regulations is proposed to be amended 

as follows: 

PART 26—DEATH SENTENCES 

PROCEDURES 

1. The authority citation for part 26 

continues to read as follows: 

Authority: 5 U.S.C. 301; 18 U.S.C. 4001(b), 

4002; 28 U.S.C. 509, 510, 2261, 2265. 

Subpart B—[Removed and Reserved] 

2. Subpart B is removed and reserved. 

Dated: May 19, 2010. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2010–12535 Filed 5–24–10; 8:45 am] 

BILLING CODE 4410–18–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 67 

[Docket ID FEMA–2010–0003; Internal 

Agency Docket No. FEMA–B–1089] 

Proposed Flood Elevation 

Determinations 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Proposed rule. 

SUMMARY: Comments are requested on 

the proposed Base (1% annual-chance) 

Flood Elevations (BFEs) and proposed 

BFE modifications for the communities 

listed in the table below. The purpose 

of this notice is to seek general 

information and comment regarding the 

proposed regulatory flood elevations for 

the reach described by the downstream 

and upstream locations in the table 

below. The BFEs and modified BFEs are 

a part of the floodplain management 

measures that the community is 

required either to adopt or to show 

evidence of having in effect in order to 

qualify or remain qualified for 

participation in the National Flood 

Insurance Program (NFIP). In addition, 

these elevations, once finalized, will be 

used by insurance agents and others to 

calculate appropriate flood insurance 

premium rates for new buildings and 

the contents in those buildings. 

DATES: Comments are to be submitted 

on or before August 23, 2010. 

ADDRESSES: The corresponding 

preliminary Flood Insurance Rate Map 

(FIRM) for the proposed BFEs for each 

community is available for inspection at 

the community’s map repository. The 

respective addresses are listed in the 

table below. 

You may submit comments, identified 

by Docket No. FEMA–B–1089, to Kevin 

C. Long, Acting Chief, Engineering 

Management Branch, Mitigation 

Directorate, Federal Emergency 

Management Agency, 500 C Street, SW., 

Washington, DC 20472, (202) 646–2820, 

or (e-mail) kevin.long@dhs.gov. 

FOR FURTHER INFORMATION CONTACT: 

Kevin C. Long, Acting Chief, 

Engineering Management Branch, 

Mitigation Directorate, Federal 

Emergency Management Agency, 500 C 

Street, SW., Washington, DC 20472, 

(202) 646–2820, or (e-mail) 

kevin.long@dhs.gov. 

SUPPLEMENTARY INFORMATION: The 

Federal Emergency Management Agency 

(FEMA) proposes to make 

determinations of BFEs and modified 

BFEs for each community listed below, 

in accordance with section 110 of the 

Flood Disaster Protection Act of 1973, 

42 U.S.C. 4104, and 44 CFR 67.4(a). 

These proposed BFEs and modified 

BFEs, together with the floodplain 

management criteria required by 44 CFR 

60.3, are the minimum that are required. 

They should not be construed to mean 

that the community must change any 

existing ordinances that are more 

stringent in their floodplain 

management requirements. The 

community may at any time enact 

stricter requirements of its own or 

pursuant to policies established by other 

Federal, State, or regional entities. 

These proposed elevations are used to 

meet the floodplain management 

requirements of the NFIP and also are 

used to calculate the appropriate flood 

insurance premium rates for new 

buildings built after these elevations are 

made final, and for the contents in those 

buildings. 

Comments on any aspect of the Flood 

Insurance Study and FIRM, other than 

the proposed BFEs, will be considered. 

A letter acknowledging receipt of any 

comments will not be sent. 

National Environmental Policy Act. 

This proposed rule is categorically 

excluded from the requirements of 44 

CFR part 10, Environmental 

Consideration. An environmental 

impact assessment has not been 

prepared. 

Regulatory Flexibility Act. As flood 

elevation determinations are not within 

the scope of the Regulatory Flexibility 

Act, 5 U.S.C. 601–612, a regulatory 

flexibility analysis is not required. 

Executive Order 12866, Regulatory 

Planning and Review. This proposed 

rule is not a significant regulatory action 

under the criteria of section 3(f) of 

Executive Order 12866, as amended. 

Executive Order 13132, Federalism. 

This proposed rule involves no policies 

that have federalism implications under 

Executive Order 13132. 

Executive Order 12988, Civil Justice 

Reform. This proposed rule meets the 

applicable standards of Executive Order 

12988. 

List of Subjects in 44 CFR Part 67 

Administrative practice and 

procedure, Flood insurance, Reporting 

and recordkeeping requirements. 

Accordingly, 44 CFR part 67 is 

proposed to be amended as follows: 

PART 67—[AMENDED] 

1. The authority citation for part 67 

continues to read as follows: 

mstockstill on DSKH9S0YB1PROD with PROPOSALS