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Proposed Rule

Certification Process for State Capital Counsel Systems

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Department of Justice.


Notice of proposed rulemaking; reopening of comment period.


On June 6, 2007, the Department of Justice published a notice of proposed rulemaking in the Federal Register, 72 FR 31217, concerning a process for certifying state systems for providing counsel to indigent capital defendants. That rulemaking was issued pursuant to section 507 of the USA PATRIOT Improvement and Reauthorization Act. The original 60-day comment period expired on August 6, 2007. The Department is reopening the comment period for an additional 45-day period.


Comments must be received on or before September 24, 2007.


Please address all comments, by U.S. mail, to: Ms. Danica Szarvas-Kidd, Policy Advisor for Adjudication, Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice, 810 7th Street, NW., Washington, DC 20531; by telefacsimile (fax), to: (202) 307-0036 or by e-mail, to: To ensure proper handling, please reference OJP Docket No.1464 on your correspondence. You may view an electronic version of the proposed rule at, and you may also comment by using the comment form. When submitting comments electronically you must include OJP Docket No. 1464 in the subject box.

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Danica Szarvas-Kidd (Policy Advisor for Adjudication), (202) 305-7418. This is not a toll-free number.

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On June 6, 2007, the Department of Justice (Department) published a notice of proposed rulemaking in the Federal Register, 72 FR 31217, in order to promulgate regulations pursuant to Public Law 109-177, the USA PATRIOT Improvement and Reauthorization Act of 2005, (“the Act”). Section 507 of the Act amends chapter 154 of title 28 of the United States Code. Chapter 154 provides expedited Federal habeas corpus review procedures in capital cases for States that establish a mechanism for providing counsel to indigent capital defendants in state postconviction proceedings that satisfies certain statutory requirements. The Act amended sections 2261(b) and 2265 of title 28 to assign responsibility to the Attorney General of the United States for certification of a State's satisfaction of the requirements for the application of chapter 154 , subject to review by the Court of Appeals for the District of Columbia Circuit. Section 2265(a) as amended makes clear that the only requirements that the Attorney General may impose for a state to receive certification are those expressly stated in chapter 154. See 28 U.S.C. 2265(a)(3) (“[t]here are no requirements for certification or for application of this chapter other than those expressly stated in this chapter”). As a result, the rule in large measure simply recounts and provides illustration relating to the express statutory requirements, addresses some limited interpretive questions, and outlines a procedure for States' requests for certification.

The Department consulted with a number of groups in developing this proposed rule to carry out the statutory directive, including representatives of state officials and both prosecution and defense interests concerned with capital case litigation. Notwithstanding the limited nature of the matters to be determined in the rule, the extensive consultation concerning these matters with interested officials and organizations, and the normal 60-day period for comment provided in the rule as originally published, a number of organizations involved in capital defense or advocacy activities have requested additional time for comment. While the justification for the requested extensions is at best marginal in light of the considerations noted above, and extending the time for comment will further delay realization of the legislative objectives reflected in chapter 154 of title 28, the Department nevertheless wishes to ensure ample opportunity for provision of input by interested groups and members of the public.

Further, some technical problems arose because of the recent transition of the Department to using the Web site ( to post public comments on rulemakings. These problems with using have now been resolved and public comments received by the Department are posted for public viewing in a timely manner. However, there was a short period when public comments received by the Department and posted by Department personnel to the site were not viewable by the public.

Accordingly, the Department is reopening the public comment period and will accept comments for an additional 45 days after publication of this notice of proposed rulemaking.

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Dated: August 1, 2007.

Cybele Daley,

Deputy Assistant Attorney General, Office of Justice Programs.

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[FR Doc. E7-15254 Filed 8-8-07; 8:45 am]