Reorganization of Regulations on Control of Employment of Aliens, 2337-2340 [E9-526]
Download as PDF
<![CDATA[
Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations
(b) Ecosystem Services Credits for
Conservation Improvements. (1) USDA
recognizes that environmental benefits
will be achieved by implementing
conservation practices and activities
funded through WRP, and that
environmental credits may be gained as
a result of implementing activities
compatible with the purposes of a WRP
easement, 30-year contract, or
restoration cost-share agreement. NRCS
asserts no direct or indirect interest in
these credits. However, NRCS retains
the authority to ensure that the
requirements of the WRPO, contract,
and easement deed are met. Where
activities required under an
environmental credit agreement may
affect land covered under a WRP
easement, 30-year contract, or
restoration cost-share agreement,
participants are highly encouraged to
request a compatibility assessment from
NRCS prior to entering into such
agreements.
(2) Section 1222(f)(2) of the Food
Security Act of 1985 as amended, does
not allow wetlands restored with
Federal funds to be utilized for Food
Security Act wetland mitigation
purposes.
Signed this 9th day of January 2009, in
Washington, DC.
Arlen L. Lancaster,
Vice President, Commodity Credit
Corporation and Chief, Natural Resources
Conservation Service.
[FR Doc. E9–735 Filed 1–14–09; 8:45 am]
BILLING CODE 3410–16–P
DEPARTMENT OF JUSTICE
Executive Office for Immigration
Review
8 CFR Part 1274a
[EOIR No. 166I; AG Order No. 3031–2009]
RIN 1125–AA64
Reorganization of Regulations on
Control of Employment of Aliens
mstockstill on PROD1PC66 with RULES
AGENCY: Executive Office for
Immigration Review, Department of
Justice.
ACTION: Interim rule with request for
comments.
SUMMARY: The Homeland Security Act
of 2002, as amended, transferred the
functions of the former Immigration and
Naturalization Service (INS) from the
Department of Justice to the Department
of Homeland Security (DHS); however,
it retained within the Department of
Justice the functions of the Executive
Office for Immigration Review (EOIR), a
VerDate Nov<24>2008
16:54 Jan 14, 2009
Jkt 217001
separate agency within the Department
of Justice. Because the existing
regulations often intermingled the
responsibilities of the former INS and
EOIR, this transfer required a
reorganization of title 8 of the Code of
Federal Regulations (CFR) in February
2003, including the establishment of a
new chapter V in 8 CFR pertaining to
EOIR. As part of this reorganization, a
number of regulations pertaining to the
responsibilities of DHS intentionally
were duplicated in the new chapter V
because of shared responsibilities. The
Department of Justice now has
determined that most of the duplicated
regulations in part 1274a pertain to
functions that are DHS’s responsibility
and do not need to be reproduced in
EOIR’s regulations in chapter V. This
interim rule, therefore, deletes
unnecessary regulations in part 1274a
and makes appropriate reference to the
applicable DHS regulations.
DATES: Effective Date: This rule is
effective January 15, 2009.
Comments: Comments on this rule
must be received by March 16, 2009.
ADDRESSES: Comments may be mailed to
John N. Blum, Acting General Counsel,
Executive Office for Immigration
Review, 5107 Leesburg Pike, Suite 2600,
Falls Church, Virginia 22041. To ensure
proper handling, please reference EOIR
Docket No. 166I on your
correspondence. You may submit
comments electronically or view an
electronic version of this interim rule at
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: John
N. Blum, Acting General Counsel,
Executive Office for Immigration
Review, 5107 Leesburg Pike, Suite 2600,
Falls Church, Virginia 22041, telephone
(703) 305–0470.
SUPPLEMENTARY INFORMATION:
I. 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 https://
www.regulations.gov. Such information
includes personal identifying
information (such as your name,
address, etc.) voluntarily submitted by
the commenter.
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
PO 00000
Frm 00045
Fmt 4700
Sfmt 4700
2337
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 https://
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. To
inspect the agency’s public docket file
in person, you must make an
appointment with agency counsel.
Please see the ‘‘For Further Information
Contact’’ paragraph below for agency
counsel’s contact information.
II. Background
The Homeland Security Act of 2002,
as amended (HSA), transferred the
functions of the former Immigration and
Naturalization Service (INS or the
Service) to the Department of Homeland
Security (DHS). Public Law 107–296, tit.
IV, subtits. D, E, F, 116 Stat. 2135, 2192
(Nov. 25, 2002), as amended. The HSA,
however, retained the functions of the
Executive Office for Immigration
Review (EOIR) within the Department of
Justice, under the direction of the
Attorney General. 6 U.S.C. 521; 8 U.S.C.
1103(g); see generally Matter of D–J–, 23
I&N Dec. 572 (A.G. 2003).
EOIR was created by the Attorney
General in 1983 to combine the
functions performed by INS special
inquiry officers (now immigration
judges) and the Board of Immigration
Appeals (Board) into a single
administrative agency within the
Department of Justice, separate from the
former INS. 48 FR 8038 (Feb. 25, 1983).
This administrative structure separated
the administrative adjudication
functions from the enforcement and
service functions of the former INS, both
for administrative efficiency and to
foster independent judgment in
adjudication. The Office of the Chief
Administrative Hearing Officer
(OCAHO) and its administrative law
judges (ALJs) were added to EOIR in
1987, following enactment of section
274A of the Immigration and
Nationality Act (INA), 8 U.S.C. 1324a.
See 52 FR 44971 (Nov. 24, 1987).
E:\FR\FM\15JAR1.SGM
15JAR1
2338
Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations
mstockstill on PROD1PC66 with RULES
Because both INS and EOIR were
agencies within the Department of
Justice at that time, the regulations
affecting these agencies were included
in the same chapter (chapter I). Most of
the immigration regulations were
organized by subject, which often
resulted in provisions relating to the
former INS and to EOIR being
intermingled in the same parts and
sections.
III. Rationale
The enactment of the HSA and its
transfer of functions of the former INS
to DHS, however, required the creation
of a new chapter for the regulations
pertaining to EOIR, separate from the
DHS regulations. Accordingly, the
Attorney General published a rule
transferring certain provisions that
related to the jurisdiction and
procedures of EOIR to a new chapter V
of 8 CFR. 68 FR 9823 (Feb. 28, 2003).
When the transfer of authority from the
former INS to DHS took place in March
2003, the time available did not permit
a thorough review of each of the
provisions of the regulations where
EOIR’s and the former INS’s
responsibilities were intermingled in
the same sections. As a result, the
Department’s rule duplicated in chapter
V certain parts and sections of the
regulations that related to the
responsibilities of both the former INS
and EOIR, respectively. The rule also
made a number of technical
amendments to chapters I and V to
ensure that the authorities existing in
the former INS and EOIR regulations
prior to the transfer of functions to DHS
remained in effect.
In particular, 8 CFR part 274a (Control
of Employment of Aliens) contained
definitional, substantive, and
procedural material relevant to both the
former INS and the Special Counsel for
Immigration-Related Unfair
Employment Practices of the
Department’s Civil Rights Division
under 28 CFR 0.53, as well as the
predicates to civil penalty proceedings
before OCAHO. It was for this reason
and out of an abundance of caution that,
in 2003, the Attorney General
duplicated the existing portions of part
274a, found in chapter I of the
regulations, into a new part 1274a,
located in chapter V.
The Department had intended to
address over time the regulatory
overlaps resulting from the 2003 rule by
eliminating or substantially reducing
any duplicative parts and sections that
intermingled EOIR’s and the former
INS’s authority. The expectation was
that DHS would revise the regulations
in chapter I of 8 CFR by eliminating
VerDate Nov<24>2008
16:54 Jan 14, 2009
Jkt 217001
provisions exclusively relating to the
immigration judges’, the Board’s, and
the OCAHO ALJs’ respective authorities
(since those provisions are properly
codified in the regulations governing
EOIR), and that the Department would
revise the regulations pertaining to EOIR
in chapter V by eliminating the
duplicative provisions that did not
relate exclusively to EOIR’s authority.
Based on experience acquired since
the transfer of the former INS’s
substantive immigration authority to
DHS, it is apparent that most of the
duplicative provisions in part 1274a
pertain to matters that are the
responsibility of DHS. Accordingly,
there is no reason or need for those
provisions of part 274a to be reproduced
in a separate part 1274a.
Moreover, DHS has begun to
implement substantive revisions to part
274a, making clear that the existing
duplicative regulatory provisions in part
1274a are not only unnecessary but
potentially confusing. Recently, after
notice and public comment, DHS is
revising 8 CFR 274a.1(l) with respect to
an employer’s response to receiving
notices from the Social Security
Administration (SSA) indicating that
certain employees’ social security
numbers as reflected in the employer’s
records do not match SSA’s records.
Safe-Harbor Procedures for Employers
Who Receive a No-Match Letter, 72 FR
45611 (Aug. 15, 2007) (final rule); 73 FR
15944 (Mar. 26, 2008) (supplemental
proposed rule). These regulatory
revisions are within DHS’ statutory
authority under sections 103 and 274A
of the INA, and are properly codified in
the DHS regulations in 8 CFR part 274a.
However, because they do not relate
directly to EOIR’s authority, these
changes would not be incorporated into
the provisions of 8 CFR part 1274a.
In addition, the Secretary of
Homeland Security and the Attorney
General recently published final rules to
implement inflation adjustments in the
amounts of civil penalties to be imposed
under section 274A of the INA. 73 FR
10130 (Feb. 26, 2008).
In order to remove unnecessary
redundancies, and to avoid any possible
confusion based on changes to part 274a
that are not also codified in part 1274a,
the Department is removing all but a
few provisions in the current part
1274a. This rule also adds a new general
provision to section 1274a.1, noting that
the substantive and procedural
regulations relating to the
implementation of the employment
verification provisions of section 274A
of the INA are contained in 8 CFR part
274a, and that the procedures for
hearings before an ALJ relating to civil
PO 00000
Frm 00046
Fmt 4700
Sfmt 4700
penalties sought by DHS under section
274A are contained in 28 CFR part 68.
This new provision also states that, to
the extent they are relevant, the
provisions of 8 CFR part 274a are
applicable in any adjudicatory
proceedings before EOIR.
The only provisions remaining in part
1274a, therefore, are those that may
have a direct impact on the authority of
the OCAHO ALJs:
• Section 1274a.9(e) and (f) relating to
the time allowed for seeking an ALJ
hearing to challenge a DHS civil penalty
and the consequences for failure to
request an ALJ hearing; and
• Section 1274a.10 relating to the
penalties to be imposed by an ALJ in a
case arising under section 274A of the
INA.
This rule revises § 1274a.9(e) and (f)
to replace references to the former INS
or the Service with references to DHS.
This rule also slightly revises the
existing language of § 1274a.9(f) for
clarity; that is, the rule now expressly
states that respondents who fail to make
a timely request for a hearing are not
entitled to a hearing before an ALJ. The
change to § 1274a.10 has already been
implemented in the rules published on
February 26, 2008.
IV. Effect
This action is not a substantive
change and does not alter any
interpretation of the provisions of the
INA or affect the legal rights of any
person. The existing regulations
codified in 8 CFR part 274a are
unaffected by this rule, and the removal
of entirely duplicative provisions in part
1274a does not alter the legal status quo.
The substantive and procedural
regulations in part 274a and in other
parts of the immigration regulations are
within the Secretary’s authority to
promulgate and revise, pursuant to
section 103 of the INA, except to the
extent that some remaining provisions
of the DHS regulations deal directly
with the authority of EOIR adjudicators
(an overlap that DHS and the
Department are working to eliminate as
discussed above). As noted, regulatory
provisions that go to the powers,
procedures, and authority of the
immigration judges, the Board, or the
ALJs in EOIR are within the Attorney
General’s exclusive authority. For
example, regulatory provisions granting
or limiting EOIR’s jurisdiction,
authorizing EOIR adjudicators to
exercise specific authorities, or directing
EOIR adjudicators to act in a certain
way are properly within the Attorney
General’s authority to promulgate,
rather than DHS’s. However, Congress
has vested in DHS the authority to
E:\FR\FM\15JAR1.SGM
15JAR1
Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations
promulgate regulations interpreting and
applying the provisions of the INA—
except insofar as the INA confers
authority on the President, the Attorney
General, or the Secretary of State—and
has vested in the Attorney General the
authority to issue binding
interpretations on all questions of law
pursuant to section 103(a)(1) of the INA.
The premise of this rule that the
provisions of part 274a are properly
applicable in adjudicatory proceedings
before EOIR is not new. The Department
previously has made clear that the
Attorney General need not personally
promulgate immigration regulations in
order for those regulations to be
applicable in proceedings before EOIR;
Attorney General Ashcroft addressed
similar issues at the time of the
adoption of the rule to reform the
Board’s adjudicatory processes in 2002,
67 FR 54878 (Aug. 26, 2002). 1 As with
any such regulation adopted by an
administrative agency pursuant to
delegated statutory authority, the
mstockstill on PROD1PC66 with RULES
1 See
67 FR at 54884 (citations omitted):
The immigration regulations, however, include
not only those rules adopted personally by the
Attorney General, but also substantive and
procedural rules duly promulgated by the
Commissioner of the Service, under an express
delegation of rulemaking authority from Congress to
the Attorney General and, in turn, from the
Attorney General to the Commissioner. The
Department fully recognizes and reiterates, of
course, that the Board and the immigration judges
are independent of the Service (although some
court opinions contain language that appears to blur
this key distinction). For this reason, the Attorney
General, and not the Commissioner, has
consistently promulgated the regulations that
govern the organization, procedures, or powers of
the Board and the immigration judges and the
conduct of immigration proceedings. The authority
delegated to the Commissioner to promulgate
substantive or ‘‘legislative’’ rules does properly
extend, however, to the interpretation of the general
provisions of the Act. A regulation adopted
pursuant to delegated statutory authority and
pursuant to applicable rulemaking requirements
under the Administrative Procedure Act has the
‘‘force and effect of law’’ as a substantive or
legislative rule. * * * The language of this rule
makes explicit what was implicit in the current
version of § 3.1.
A fundamental premise of the immigration
enforcement process must be that the substantive
regulations codified in title 8 of the Code of Federal
Regulations are binding in all administrative
settings, and this specifically includes substantive
regulations interpreting and applying the provisions
of the Act. * * * [T]he respondents, the
immigration judges, the Service, and the public at
large should not be left to wonder whether the
regulations interpreting and applying the
substantive provisions of the Act will be binding in
administrative proceedings under the Act.
Such regulations themselves, of course, are
susceptible to interpretation and application of
their regulatory language by the immigration judges
and the Board. However, if a substantive rule
clearly defines a statutory term, or reflects a legal
interpretation of the statutory provisions, then the
position set forth in the rule will govern both the
actions of the Service and the adjudication of
immigration proceedings before the immigration
judges and the Board.
VerDate Nov<24>2008
16:54 Jan 14, 2009
Jkt 217001
substantive or ‘‘legislative’’ regulations
adopted by DHS (or by the former INS)
within the scope of its delegated
authority under the INA are properly
deemed to have the ‘‘force and effect of
law.’’ Thus, the DHS legislative
regulations are properly treated as part
of the governing law, not merely as
‘‘guidance’’ or recommendations for
EOIR adjudicators to consider.2
V. Conclusion
In summary, this interim rule deletes
certain unnecessary duplicative
provisions in part 1274a and revises the
remaining provisions in a way that
references applicable regulations in part
274a. The Department and DHS plan to
review other duplicated provisions of
the immigration regulations in the
future to determine whether additional
provisions in different parts of the
regulations also should be deleted to
simplify the Code of Federal
Regulations.
Administrative Procedure Act
The Department of Justice finds that
good cause exists for adopting this rule
as an interim rule with provision for
post-promulgation public comment
under 5 U.S.C. 553 because this rule
only makes technical amendments to
the organization, procedures, and
practices of the Department of Justice to
improve the organization of the
Department regulations and reflects the
transfer of functions contemplated by
the Homeland Security Act of 2002.
Similarly, because this interim rule
makes changes in internal delegations
and procedures, and is a recodification
of existing regulations, this interim rule
is not subject to the effective date
limitation of 5 U.S.C. 553(d).
Regulatory Flexibility Act
Because no notice of proposed rulemaking is required for this rule under
the Administrative Procedure Act (5
U.S.C. 553), the provisions of the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.) do not apply.
2 To
the extent that an EOIR adjudicator may
believe that an applicable regulation may not be
consistent with the statute, the decisions of the
ALJs or the Chief Administrative Hearing Officer in
cases arising under sections 274A and 274C of the
INA are subject to review by the Attorney General,
as are the decisions of the Board, see 28 CFR 68.55,
8 CFR 1003.1(h)(1), and the Attorney General can
decide when and how to exercise his ultimate
authority to determine all questions of law with
respect to matters arising under the INA. See, e.g.,
Matter of Ponce de Leon-Ruiz, 21 I&N Dec. 154 (BIA
1996; A.G. 1997) (the Board adhered to the
regulatory interpretation in its decision but referred
the case to the Attorney General for review in light
of the Board’s concern that the regulatory provision
was not consistent with the statutory language);
section 103(a)(1) and (g)(1), 8 U.S.C. 1103(a)(1) and
(g)(1).
PO 00000
Frm 00047
Fmt 4700
Sfmt 4700
2339
Paperwork Reduction Act
The provisions of the Paperwork
Reduction Act of 1995, Public Law 104–
13, 44 U.S.C. chapter 35, and its
implementing regulations, 5 CFR part
1320, do not apply to this interim rule
because there are no new or revised
recordkeeping or reporting
requirements.
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 million 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 on the
ability of United States-based
companies to compete with foreignbased companies in domestic and
export markets.
Congressional Review Act
This action pertains to agency
organization, procedures, and practices
and does not substantially affect the
rights or obligations of non-agency
parties and, accordingly, is not a ‘‘rule’’
as that term is used by the
Congressional Review Act (Subtitle E of
the Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA)). Therefore, the reporting
requirement of 5 U.S.C. 801 does not
apply.
Executive Order 12866
This rule has been drafted and
reviewed in accordance with Executive
Order 12866, section 1(b), Principles of
Regulation. The Department has
determined that this rule is not a
‘‘significant regulatory action’’ under
section 3(f) of Executive Order 12866,
Regulatory Planning and Review and
accordingly this rule has not been
reviewed by the Office of Management
and Budget (OMB).
Executive Order 13132
This rule will not have substantial
direct effects on the States, on the
E:\FR\FM\15JAR1.SGM
15JAR1
2340
Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, the Department of Justice
has determined that this rule does not
have sufficient federalism implications
to warrant a federalism summary impact
statement.
Executive Order 12988
This rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil
Justice Reform.
List of Subjects in Part 1274a
Administrative practice and
procedure, Immigration.
■ Accordingly, for the foregoing
reasons, part 1274a of chapter V of title
8 of the Code of Federal Regulations is
amended as follows:
PART 1274a—CONTROL OF
EMPLOYMENT OF ALIENS
Authority: 8 U.S.C. 1101, 1103, 1324a.
2. Revise § 1274a.1 to read as follows:
(a) Applicable regulations. The
regulations of the Department of
Homeland Security (DHS) relating to the
implementation of the employment
eligibility and verification provisions of
section 274A of the Immigration and
Nationality Act (Act) are contained in 8
CFR part 274a.
(b) Adjudication of civil penalty
proceedings. The procedures for
hearings before an administrative law
judge relating to civil penalties sought
by DHS under section 274A of the Act
are contained in 28 CFR part 68. The
regulations governing employment
eligibility and verification in 8 CFR part
274a are applicable to hearings before
an administrative law judge and, to the
extent relevant, to cases before an
immigration judge or the Board of
Immigration Appeals.
§§ 1274a.2, 1274a.3, 1274a.4, 1274a.5,
1274a.6, 1274a.7 and 1274a.8 [Removed]
3. Remove sections 1274a.2 through
1274a.8.
■ 4. Section 1274a.9 is amended by:
■ a. Removing and reserving paragraphs
(a) through (d);
■ b. Amending paragraph (e) by
removing the terms ‘‘the INS’’ and ‘‘the
Service’’ and adding in their place the
term ‘‘DHS’’; and by
mstockstill on PROD1PC66 with RULES
VerDate Nov<24>2008
16:54 Jan 14, 2009
Jkt 217001
*
*
*
*
*
(f) Failure to file a request for a
hearing. If the respondent does not file
a request for a hearing in writing within
thirty days of the date of service of a
Notice of Intent to Fine (thirty-five days
if served by ordinary mail), the final
order issued by DHS shall not be subject
to a hearing before an administrative
law judge under 28 CFR part 68.
Subpart B [Removed and reserved]
■
5. Remove and reserve subpart B.
Dated: January 7, 2009.
Michael B. Mukasey,
Attorney General.
[FR Doc. E9–526 Filed 1–14–09; 8:45 am]
BILLING CODE 4410–30–P
FARM CREDIT ADMINISTRATION
Rules of Practice and Procedure;
Adjusting Civil Money Penalties for
Inflation
Farm Credit Administration.
Final rule.
AGENCY:
Employer requirements.
■
Enforcement procedures.
RIN 3052–AC47
1. The authority citation for part
1274a continues to read as follows:
§ 1274a.1
§ 1274a.9
12 CFR Part 622
■
■
c. Revising paragraph (f), to read as
follows:
■
ACTION:
SUMMARY: This regulation implements
cost-of-living adjustments to civil
money penalties (CMPs) that the Farm
Credit Administration (FCA) may
impose under the Farm Credit Act of
1971, as amended (Farm Credit Act),
and under the National Flood Insurance
Reform Act of 1994 (Reform Act). The
Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended by
the Debt Collection Improvement Act of
1996 (FCPIA Act), requires all Federal
agencies with the authority to impose
CMPs to evaluate those CMPs
periodically to ensure that they
continue to maintain their deterrent
value.
DATES: Effective Date: The regulation
will become effective on January 16,
2009.
FOR FURTHER INFORMATION CONTACT:
Michael T. Wilson, Policy Analyst,
Office of Regulatory Policy, Farm
Credit Administration, McLean, VA
22102–5090, (703) 883–4124, TTY
(703) 883–4434,
or
Howard I. Rubin, Senior Counsel, Office
of General Counsel, Farm Credit
Administration, McLean, VA 22102–
5090, (703) 883–4029, TTY (703) 883–
4020.
PO 00000
Frm 00048
Fmt 4700
Sfmt 4700
SUPPLEMENTARY INFORMATION:
I. Objective
The objective of this regulation is to
recalculate the CMP inflation
adjustments consistent with the FCPIA
Act.
II. Background
A. Federal Civil Penalties Inflation
Adjustment Act of 1990, as Amended
The FCPIA Act requires every Federal
agency with authority to issue CMPs to
enact regulations that adjust its CMPs
pursuant to the inflation adjustment
formula in section 5(b) of the FCPIA
Act.1 Each Federal agency was required
to issue these regulations by October 23,
1996, and adjust them when necessary
at least once every 4 years thereafter.
Section 6 of the amended FCPIA Act
specifies that inflation-adjusted CMPs
will apply only to violations that occur
after the effective date of the
adjustment. The inflation adjustment is
based on the percentage increase in the
Consumer Price Index (CPI).2
Specifically, section 5(b) of the FCPIA
Act defines the term ‘‘cost-of-living
adjustment’’ as ‘‘the percentage (if any)
for each civil monetary penalty by
which (1) the Consumer Price Index for
the month of June of the calendar year
preceding the adjustment, exceeds (2)
the Consumer Price Index for the month
of June of the calendar year in which the
amount of such civil monetary penalty
was last set or adjusted pursuant to
law.’’ Furthermore, the increase for each
CMP that is adjusted for inflation must
be rounded using a method prescribed
by section 5(a) of the FCPIA Act.
B. CMPs Issued Under the Farm Credit
Act
Section 5.32(a) of the Farm Credit Act
provides that any FCS institution or any
officer, director, employee, agent, or
other person participating in the
conduct of the affairs of an FCS
institution who violates the terms of a
final order issued under section 5.25 or
5.26 of the Farm Credit Act must pay up
to $1,000 per day for each day during
which such violation continues. Orders
issued by FCA under section 5.25 or
5.26 of the Farm Credit Act include
1 See 28 U.S.C. 2461 note. Section 3(2) of the
amended FCPIA Act defines a CMP as any penalty,
fine, or other sanction that: (1) Either is for a
specific monetary amount as provided by Federal
law or has a maximum amount provided for by
Federal law; (2) is assessed or enforced by an
agency pursuant to Federal law; and (3) is assessed
or enforced pursuant to an administrative
proceeding or a civil action in the Federal courts.
2 The CPI is published by the Department of
Labor, Bureau of Statistics, and is available at its
Web site: ftp://ftp.bls.gov/pub/special.requests/cpi/
cpiai.txt.
E:\FR\FM\15JAR1.SGM
15JAR1
]]>Agencies
[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Rules and Regulations]
[Pages 2337-2340]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-526]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1274a
[EOIR No. 166I; AG Order No. 3031-2009]
RIN 1125-AA64
Reorganization of Regulations on Control of Employment of Aliens
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Homeland Security Act of 2002, as amended, transferred the
functions of the former Immigration and Naturalization Service (INS)
from the Department of Justice to the Department of Homeland Security
(DHS); however, it retained within the Department of Justice the
functions of the Executive Office for Immigration Review (EOIR), a
separate agency within the Department of Justice. Because the existing
regulations often intermingled the responsibilities of the former INS
and EOIR, this transfer required a reorganization of title 8 of the
Code of Federal Regulations (CFR) in February 2003, including the
establishment of a new chapter V in 8 CFR pertaining to EOIR. As part
of this reorganization, a number of regulations pertaining to the
responsibilities of DHS intentionally were duplicated in the new
chapter V because of shared responsibilities. The Department of Justice
now has determined that most of the duplicated regulations in part
1274a pertain to functions that are DHS's responsibility and do not
need to be reproduced in EOIR's regulations in chapter V. This interim
rule, therefore, deletes unnecessary regulations in part 1274a and
makes appropriate reference to the applicable DHS regulations.
DATES: Effective Date: This rule is effective January 15, 2009.
Comments: Comments on this rule must be received by March 16, 2009.
ADDRESSES: Comments may be mailed to John N. Blum, Acting General
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike,
Suite 2600, Falls Church, Virginia 22041. To ensure proper handling,
please reference EOIR Docket No. 166I on your correspondence. You may
submit comments electronically or view an electronic version of this
interim rule at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: John N. Blum, Acting General Counsel,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2600, Falls Church, Virginia 22041, telephone (703) 305-0470.
SUPPLEMENTARY INFORMATION:
I. 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.
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
https://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. To inspect the
agency's public docket file in person, you must make an appointment
with agency counsel. Please see the ``For Further Information Contact''
paragraph below for agency counsel's contact information.
II. Background
The Homeland Security Act of 2002, as amended (HSA), transferred
the functions of the former Immigration and Naturalization Service (INS
or the Service) to the Department of Homeland Security (DHS). Public
Law 107-296, tit. IV, subtits. D, E, F, 116 Stat. 2135, 2192 (Nov. 25,
2002), as amended. The HSA, however, retained the functions of the
Executive Office for Immigration Review (EOIR) within the Department of
Justice, under the direction of the Attorney General. 6 U.S.C. 521; 8
U.S.C. 1103(g); see generally Matter of D-J-, 23 I&N Dec. 572 (A.G.
2003).
EOIR was created by the Attorney General in 1983 to combine the
functions performed by INS special inquiry officers (now immigration
judges) and the Board of Immigration Appeals (Board) into a single
administrative agency within the Department of Justice, separate from
the former INS. 48 FR 8038 (Feb. 25, 1983). This administrative
structure separated the administrative adjudication functions from the
enforcement and service functions of the former INS, both for
administrative efficiency and to foster independent judgment in
adjudication. The Office of the Chief Administrative Hearing Officer
(OCAHO) and its administrative law judges (ALJs) were added to EOIR in
1987, following enactment of section 274A of the Immigration and
Nationality Act (INA), 8 U.S.C. 1324a. See 52 FR 44971 (Nov. 24, 1987).
[[Page 2338]]
Because both INS and EOIR were agencies within the Department of
Justice at that time, the regulations affecting these agencies were
included in the same chapter (chapter I). Most of the immigration
regulations were organized by subject, which often resulted in
provisions relating to the former INS and to EOIR being intermingled in
the same parts and sections.
III. Rationale
The enactment of the HSA and its transfer of functions of the
former INS to DHS, however, required the creation of a new chapter for
the regulations pertaining to EOIR, separate from the DHS regulations.
Accordingly, the Attorney General published a rule transferring certain
provisions that related to the jurisdiction and procedures of EOIR to a
new chapter V of 8 CFR. 68 FR 9823 (Feb. 28, 2003). When the transfer
of authority from the former INS to DHS took place in March 2003, the
time available did not permit a thorough review of each of the
provisions of the regulations where EOIR's and the former INS's
responsibilities were intermingled in the same sections. As a result,
the Department's rule duplicated in chapter V certain parts and
sections of the regulations that related to the responsibilities of
both the former INS and EOIR, respectively. The rule also made a number
of technical amendments to chapters I and V to ensure that the
authorities existing in the former INS and EOIR regulations prior to
the transfer of functions to DHS remained in effect.
In particular, 8 CFR part 274a (Control of Employment of Aliens)
contained definitional, substantive, and procedural material relevant
to both the former INS and the Special Counsel for Immigration-Related
Unfair Employment Practices of the Department's Civil Rights Division
under 28 CFR 0.53, as well as the predicates to civil penalty
proceedings before OCAHO. It was for this reason and out of an
abundance of caution that, in 2003, the Attorney General duplicated the
existing portions of part 274a, found in chapter I of the regulations,
into a new part 1274a, located in chapter V.
The Department had intended to address over time the regulatory
overlaps resulting from the 2003 rule by eliminating or substantially
reducing any duplicative parts and sections that intermingled EOIR's
and the former INS's authority. The expectation was that DHS would
revise the regulations in chapter I of 8 CFR by eliminating provisions
exclusively relating to the immigration judges', the Board's, and the
OCAHO ALJs' respective authorities (since those provisions are properly
codified in the regulations governing EOIR), and that the Department
would revise the regulations pertaining to EOIR in chapter V by
eliminating the duplicative provisions that did not relate exclusively
to EOIR's authority.
Based on experience acquired since the transfer of the former INS's
substantive immigration authority to DHS, it is apparent that most of
the duplicative provisions in part 1274a pertain to matters that are
the responsibility of DHS. Accordingly, there is no reason or need for
those provisions of part 274a to be reproduced in a separate part
1274a.
Moreover, DHS has begun to implement substantive revisions to part
274a, making clear that the existing duplicative regulatory provisions
in part 1274a are not only unnecessary but potentially confusing.
Recently, after notice and public comment, DHS is revising 8 CFR
274a.1(l) with respect to an employer's response to receiving notices
from the Social Security Administration (SSA) indicating that certain
employees' social security numbers as reflected in the employer's
records do not match SSA's records. Safe-Harbor Procedures for
Employers Who Receive a No-Match Letter, 72 FR 45611 (Aug. 15, 2007)
(final rule); 73 FR 15944 (Mar. 26, 2008) (supplemental proposed rule).
These regulatory revisions are within DHS' statutory authority under
sections 103 and 274A of the INA, and are properly codified in the DHS
regulations in 8 CFR part 274a. However, because they do not relate
directly to EOIR's authority, these changes would not be incorporated
into the provisions of 8 CFR part 1274a.
In addition, the Secretary of Homeland Security and the Attorney
General recently published final rules to implement inflation
adjustments in the amounts of civil penalties to be imposed under
section 274A of the INA. 73 FR 10130 (Feb. 26, 2008).
In order to remove unnecessary redundancies, and to avoid any
possible confusion based on changes to part 274a that are not also
codified in part 1274a, the Department is removing all but a few
provisions in the current part 1274a. This rule also adds a new general
provision to section 1274a.1, noting that the substantive and
procedural regulations relating to the implementation of the employment
verification provisions of section 274A of the INA are contained in 8
CFR part 274a, and that the procedures for hearings before an ALJ
relating to civil penalties sought by DHS under section 274A are
contained in 28 CFR part 68. This new provision also states that, to
the extent they are relevant, the provisions of 8 CFR part 274a are
applicable in any adjudicatory proceedings before EOIR.
The only provisions remaining in part 1274a, therefore, are those
that may have a direct impact on the authority of the OCAHO ALJs:
Section 1274a.9(e) and (f) relating to the time allowed
for seeking an ALJ hearing to challenge a DHS civil penalty and the
consequences for failure to request an ALJ hearing; and
Section 1274a.10 relating to the penalties to be imposed
by an ALJ in a case arising under section 274A of the INA.
This rule revises Sec. 1274a.9(e) and (f) to replace references to
the former INS or the Service with references to DHS. This rule also
slightly revises the existing language of Sec. 1274a.9(f) for clarity;
that is, the rule now expressly states that respondents who fail to
make a timely request for a hearing are not entitled to a hearing
before an ALJ. The change to Sec. 1274a.10 has already been
implemented in the rules published on February 26, 2008.
IV. Effect
This action is not a substantive change and does not alter any
interpretation of the provisions of the INA or affect the legal rights
of any person. The existing regulations codified in 8 CFR part 274a are
unaffected by this rule, and the removal of entirely duplicative
provisions in part 1274a does not alter the legal status quo.
The substantive and procedural regulations in part 274a and in
other parts of the immigration regulations are within the Secretary's
authority to promulgate and revise, pursuant to section 103 of the INA,
except to the extent that some remaining provisions of the DHS
regulations deal directly with the authority of EOIR adjudicators (an
overlap that DHS and the Department are working to eliminate as
discussed above). As noted, regulatory provisions that go to the
powers, procedures, and authority of the immigration judges, the Board,
or the ALJs in EOIR are within the Attorney General's exclusive
authority. For example, regulatory provisions granting or limiting
EOIR's jurisdiction, authorizing EOIR adjudicators to exercise specific
authorities, or directing EOIR adjudicators to act in a certain way are
properly within the Attorney General's authority to promulgate, rather
than DHS's. However, Congress has vested in DHS the authority to
[[Page 2339]]
promulgate regulations interpreting and applying the provisions of the
INA--except insofar as the INA confers authority on the President, the
Attorney General, or the Secretary of State--and has vested in the
Attorney General the authority to issue binding interpretations on all
questions of law pursuant to section 103(a)(1) of the INA.
The premise of this rule that the provisions of part 274a are
properly applicable in adjudicatory proceedings before EOIR is not new.
The Department previously has made clear that the Attorney General need
not personally promulgate immigration regulations in order for those
regulations to be applicable in proceedings before EOIR; Attorney
General Ashcroft addressed similar issues at the time of the adoption
of the rule to reform the Board's adjudicatory processes in 2002, 67 FR
54878 (Aug. 26, 2002). \1\ As with any such regulation adopted by an
administrative agency pursuant to delegated statutory authority, the
substantive or ``legislative'' regulations adopted by DHS (or by the
former INS) within the scope of its delegated authority under the INA
are properly deemed to have the ``force and effect of law.'' Thus, the
DHS legislative regulations are properly treated as part of the
governing law, not merely as ``guidance'' or recommendations for EOIR
adjudicators to consider.\2\
---------------------------------------------------------------------------
\1\ See 67 FR at 54884 (citations omitted):
The immigration regulations, however, include not only those
rules adopted personally by the Attorney General, but also
substantive and procedural rules duly promulgated by the
Commissioner of the Service, under an express delegation of
rulemaking authority from Congress to the Attorney General and, in
turn, from the Attorney General to the Commissioner. The Department
fully recognizes and reiterates, of course, that the Board and the
immigration judges are independent of the Service (although some
court opinions contain language that appears to blur this key
distinction). For this reason, the Attorney General, and not the
Commissioner, has consistently promulgated the regulations that
govern the organization, procedures, or powers of the Board and the
immigration judges and the conduct of immigration proceedings. The
authority delegated to the Commissioner to promulgate substantive or
``legislative'' rules does properly extend, however, to the
interpretation of the general provisions of the Act. A regulation
adopted pursuant to delegated statutory authority and pursuant to
applicable rulemaking requirements under the Administrative
Procedure Act has the ``force and effect of law'' as a substantive
or legislative rule. * * * The language of this rule makes explicit
what was implicit in the current version of Sec. 3.1.
A fundamental premise of the immigration enforcement process
must be that the substantive regulations codified in title 8 of the
Code of Federal Regulations are binding in all administrative
settings, and this specifically includes substantive regulations
interpreting and applying the provisions of the Act. * * * [T]he
respondents, the immigration judges, the Service, and the public at
large should not be left to wonder whether the regulations
interpreting and applying the substantive provisions of the Act will
be binding in administrative proceedings under the Act.
Such regulations themselves, of course, are susceptible to
interpretation and application of their regulatory language by the
immigration judges and the Board. However, if a substantive rule
clearly defines a statutory term, or reflects a legal interpretation
of the statutory provisions, then the position set forth in the rule
will govern both the actions of the Service and the adjudication of
immigration proceedings before the immigration judges and the Board.
\2\ To the extent that an EOIR adjudicator may believe that an
applicable regulation may not be consistent with the statute, the
decisions of the ALJs or the Chief Administrative Hearing Officer in
cases arising under sections 274A and 274C of the INA are subject to
review by the Attorney General, as are the decisions of the Board,
see 28 CFR 68.55, 8 CFR 1003.1(h)(1), and the Attorney General can
decide when and how to exercise his ultimate authority to determine
all questions of law with respect to matters arising under the INA.
See, e.g., Matter of Ponce de Leon-Ruiz, 21 I&N Dec. 154 (BIA 1996;
A.G. 1997) (the Board adhered to the regulatory interpretation in
its decision but referred the case to the Attorney General for
review in light of the Board's concern that the regulatory provision
was not consistent with the statutory language); section 103(a)(1)
and (g)(1), 8 U.S.C. 1103(a)(1) and (g)(1).
---------------------------------------------------------------------------
V. Conclusion
In summary, this interim rule deletes certain unnecessary
duplicative provisions in part 1274a and revises the remaining
provisions in a way that references applicable regulations in part
274a. The Department and DHS plan to review other duplicated provisions
of the immigration regulations in the future to determine whether
additional provisions in different parts of the regulations also should
be deleted to simplify the Code of Federal Regulations.
Administrative Procedure Act
The Department of Justice finds that good cause exists for adopting
this rule as an interim rule with provision for post-promulgation
public comment under 5 U.S.C. 553 because this rule only makes
technical amendments to the organization, procedures, and practices of
the Department of Justice to improve the organization of the Department
regulations and reflects the transfer of functions contemplated by the
Homeland Security Act of 2002. Similarly, because this interim rule
makes changes in internal delegations and procedures, and is a
recodification of existing regulations, this interim rule is not
subject to the effective date limitation of 5 U.S.C. 553(d).
Regulatory Flexibility Act
Because no notice of proposed rule-making is required for this rule
under the Administrative Procedure Act (5 U.S.C. 553), the provisions
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.
Paperwork Reduction Act
The provisions of the Paperwork Reduction Act of 1995, Public Law
104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR
part 1320, do not apply to this interim rule because there are no new
or revised recordkeeping or reporting requirements.
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
million 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 on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Congressional Review Act
This action pertains to agency organization, procedures, and
practices and does not substantially affect the rights or obligations
of non-agency parties and, accordingly, is not a ``rule'' as that term
is used by the Congressional Review Act (Subtitle E of the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)).
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
Executive Order 12866
This rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Department has determined that this rule is not a ``significant
regulatory action'' under section 3(f) of Executive Order 12866,
Regulatory Planning and Review and accordingly this rule has not been
reviewed by the Office of Management and Budget (OMB).
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the
[[Page 2340]]
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, in accordance with section 6 of Executive Order
13132, the Department of Justice has determined that this rule does not
have sufficient federalism implications to warrant a federalism summary
impact statement.
Executive Order 12988
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform.
List of Subjects in Part 1274a
Administrative practice and procedure, Immigration.
0
Accordingly, for the foregoing reasons, part 1274a of chapter V of
title 8 of the Code of Federal Regulations is amended as follows:
PART 1274a--CONTROL OF EMPLOYMENT OF ALIENS
0
1. The authority citation for part 1274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a.
0
2. Revise Sec. 1274a.1 to read as follows:
Sec. 1274a.1 Employer requirements.
(a) Applicable regulations. The regulations of the Department of
Homeland Security (DHS) relating to the implementation of the
employment eligibility and verification provisions of section 274A of
the Immigration and Nationality Act (Act) are contained in 8 CFR part
274a.
(b) Adjudication of civil penalty proceedings. The procedures for
hearings before an administrative law judge relating to civil penalties
sought by DHS under section 274A of the Act are contained in 28 CFR
part 68. The regulations governing employment eligibility and
verification in 8 CFR part 274a are applicable to hearings before an
administrative law judge and, to the extent relevant, to cases before
an immigration judge or the Board of Immigration Appeals.
Sec. Sec. 1274a.2, 1274a.3, 1274a.4, 1274a.5, 1274a.6, 1274a.7 and
1274a.8 [Removed]
0
3. Remove sections 1274a.2 through 1274a.8.
0
4. Section 1274a.9 is amended by:
0
a. Removing and reserving paragraphs (a) through (d);
0
b. Amending paragraph (e) by removing the terms ``the INS'' and ``the
Service'' and adding in their place the term ``DHS''; and by
0
c. Revising paragraph (f), to read as follows:
Sec. 1274a.9 Enforcement procedures.
* * * * *
(f) Failure to file a request for a hearing. If the respondent does
not file a request for a hearing in writing within thirty days of the
date of service of a Notice of Intent to Fine (thirty-five days if
served by ordinary mail), the final order issued by DHS shall not be
subject to a hearing before an administrative law judge under 28 CFR
part 68.
Subpart B [Removed and reserved]
0
5. Remove and reserve subpart B.
Dated: January 7, 2009.
Michael B. Mukasey,
Attorney General.
[FR Doc. E9-526 Filed 1-14-09; 8:45 am]
BILLING CODE 4410-30-P
