Standards and Procedures for the Enforcement of the Immigration and Nationality Act, 53965-53978 [2016-18957]

Agencies

• Department of Justice

[Federal Register Volume 81, Number 157 (Monday, August 15, 2016)]
[Proposed Rules]
[Pages 53965-53978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18957]


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DEPARTMENT OF JUSTICE

28 CFR Parts 0 and 44

[CRT Docket No. 130; AG Order No. 3726-2016]
RIN 1190-AA71


Standards and Procedures for the Enforcement of the Immigration 
and Nationality Act

AGENCY: Civil Rights Division, Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Justice (Department) proposes to revise 
regulations implementing a section of the Immigration and Nationality 
Act concerning unfair immigration-related employment practices. The 
proposed revisions are appropriate to conform the regulations to the 
statutory text as amended, simplify and add definitions of statutory 
terms, update and clarify the procedures for filing and processing 
charges of discrimination, ensure effective investigations of unfair 
immigration-related employment practices, reflect developments in 
nondiscrimination jurisprudence, reflect changes in existing practices 
(e.g., electronic filing of charges), reflect the new name of the 
office within the Department charged with enforcing this statute, and 
replace outdated references.

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DATES: Comments must be submitted on or before September 14, 2016. 
Comments received by mail will be considered timely if they are 
postmarked on or before that date. The electronic Federal Docket 
Management System (FDMS) will accept comments until midnight Eastern 
Time at the end of the day.

ADDRESSES: You may submit written comments, identified by Docket No. 
CRT 130, by ONE of the following methods:
    Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
instructions for submitting comments.
    Mail: 950 Pennsylvania Avenue NW--NYA, Suite 9000, Washington, DC 
20530.
    Hand Delivery/Courier: 1425 New York Avenue, Suite 9000, 
Washington, DC 20005.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
rulemaking. For additional details on submitting comments, see the 
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION 
section of this document.

FOR FURTHER INFORMATION CONTACT: Alberto Ruisanchez, Deputy Special 
Counsel, Office of Special Counsel for Immigration-Related Unfair 
Employment Practices, Civil Rights Division, 950 Pennsylvania Avenue 
NW., Washington, DC 20530, (202) 616-5594 (voice) or (800) 237-2515 
(TTY); or Office of Special Counsel for Immigration-Related Unfair 
Employment Practices, Civil Rights Division, 950 Pennsylvania Avenue 
NW., Washington, DC 20530, (202) 353-9338 (voice) or (800) 237-2515 
(TTY).

SUPPLEMENTARY INFORMATION: 

Executive Summary

    The anti-discrimination provision of the Immigration and 
Nationality Act, section 274B, codified at 8 U.S.C. 1324b, was enacted 
by Congress as part of the Immigration Reform and Control Act of 1986, 
Public Law 99-603, to prohibit certain unfair immigration-related 
employment practices. Congress provided for the appointment of a 
Special Counsel for Immigration-Related Unfair Employment Practices 
(Special Counsel) to enforce this provision. Congress has amended 8 
U.S.C. 1324b several times. On November 29, 1990, by section 535 of the 
Immigration Act of 1990, Public Law 101-649, Congress added a new 
subsection (a)(6) prohibiting certain unfair documentary practices 
during the employment eligibility verification process. See 8 U.S.C. 
1324b(a)(6) (1994). On September 30, 1996, by section 421 of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 
(IIRIRA), Public Law 104-208, div. C, Congress further amended that 
provision by providing that unfair documentary practices were unlawful 
only if done ``for the purpose or with the intent of discriminating 
against an individual in violation of'' 8 U.S.C. 1324b(a)(1). See 8 
U.S.C. 1324b(a)(6) (2000). The set of regulations implementing section 
1324b, 28 CFR part 44, has not been updated to reflect the statutory 
text as amended by IIRIRA. The proposed revisions apply to the Special 
Counsel's investigations and to cases adjudicated under section 1324b 
before the Department's Executive Office for Immigration Review, Office 
of the Chief Administrative Hearing Officer (OCAHO).
    The proposed revisions to 28 CFR part 44 incorporate the intent 
requirement contained in the amended statute, and also change the 
regulatory provisions regarding the Special Counsel's investigation of 
unfair immigration-related employment practices. Specifically, the 
proposed revisions update the ways in which charges of discrimination 
can be filed, clarify the procedures for processing of such charges, 
and conform the regulations to the statutory text to clarify the 
timeframes within which the Special Counsel may file a complaint with 
OCAHO. The proposed revisions also simplify the definitions of certain 
statutory terms and define additional statutory terms to clarify the 
full extent of the prohibitions against unfair immigration-related 
employment practices and to eliminate ambiguities in the regulatory 
text. Additionally, the proposed revisions codify the Special Counsel's 
existing authority to seek and ensure the preservation of evidence 
during investigations of alleged unfair immigration-related employment 
practices. The proposed revisions also replace references to the former 
Immigration and Naturalization Service with references to the 
Department of Homeland Security (DHS), where applicable, in accordance 
with the Homeland Security Act of 2002, Public Law 107-296 (HSA).
    Finally, the proposed revisions reflect the change in name of the 
office within the Department's Civil Rights Division that enforces the 
anti-discrimination provision, from the Office of Special Counsel for 
Immigration-Related Unfair Employment Practices to the Immigrant and 
Employee Rights Section.

Section-by-Section Summary

28 CFR Part 0

Section 0.53 Immigrant and Employee Rights Section
    This proposed rule would amend this section to reflect the new name 
of the office through which the Special Counsel enforces the anti-
discrimination provision. In 1997, the Department of Justice 
incorporated the Office of Special Counsel for Immigration-Related 
Unfair Employment Practices into the Civil Rights Division. 62 FR 23657 
(May 1, 1997) (codified at 28 CFR 0.53). That office is now called the 
Immigrant and Employee Rights Section, headed by the Special Counsel, 
in the Civil Rights Division.

28 CFR Part 44

Subpart A--Purpose and Definitions
Section 44.100 Purpose
    The proposed rule would amend this section to reflect the enactment 
of IIRIRA.
Section 44.101 Definitions of statutory terms and phrases
    New paragraph (a) would contain a revised definition of the term 
``charge.'' The proposed revisions would simplify this definition by 
eliminating information related to an alien's immigration status that 
is not required in determining whether the Special Counsel has 
jurisdiction to investigate an alleged unfair immigration-related 
employment practice. The proposed revised definition would ensure that 
a charge form could be treated as a filed charge even if the form was 
incomplete, as provided in 28 CFR 44.301, so long as it nonetheless 
provided sufficient information to determine the agency's jurisdiction. 
Further, the proposed revisions would codify the longstanding practice 
of accepting written statements in any language alleging an unfair 
immigration-related employment practice.
    New paragraph (b) would contain a revised definition of the term 
``charging party.'' The rule would replace the word ``individual'' with 
the term ``injured party,'' which is later defined, in order to 
simplify the regulatory text. It would also replace the term ``private 
organization'' with the term ``entity'' in order to make clear that the 
scope of entities that may file a charge on behalf of one or more 
injured parties is not limited to private organizations. In addition, 
it would clarify that the DHS may file charges alleging ongoing as well 
as past acts of unlawful employment discrimination. Finally, it

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would change the phrase ``has been adversely affected'' to ``is 
adversely affected'' to more closely track the statutory language.
    New paragraph (c) would define the term ``citizenship status.'' The 
proposed revisions add this term to the list of defined statutory terms 
to codify the definition of this term, consistent with the Special 
Counsel's longstanding guidance to the public. An individual's 
citizenship status connotes more than simply whether the individual is 
or is not a U.S. citizen, and encompasses as well a non-U.S. citizen's 
immigration status. For example, a refugee denied hire because of his 
or her refugee status could be a victim of unlawful discrimination. 
Relevant administrative decisions support the conclusion that an 
individual's citizenship status includes immigration status. See, e.g., 
Kamal-Griffin v. Cahill Gordon & Reindel, 3 OCAHO no. 568, 1641, 1647 
(1993) (``Congress intended the term `citizenship status' to refer both 
to alienage and to non-citizen status.'').
    New paragraph (d) would contain a revised definition of 
``complaint.'' The proposed revision would clarify that complaints must 
be filed with OCAHO and allege one or more unfair immigration-related 
employment practices, and would replace the reference to the former 
Immigration and Naturalization Service with the DHS, in accordance with 
the HSA.
    New paragraph (e) would define the term ``discriminate,'' as that 
term is used in 8 U.S.C. 1324b. This proposed definition clarifies that 
discrimination means the act of intentionally treating an individual 
differently, regardless of the explanation for the discrimination, and 
regardless of whether it is because of animus or hostility. See, e.g., 
United States v. Sw. Marine Corp., 3 OCAHO no. 429, 336, 359 (1992). 
Section 1324b is modeled after Title VII of the Civil Rights Act of 
1964, and case law under that provision confirms that intentional 
discrimination does not require animus or hostility. See Sodhi v. 
Maricopa Cty. Special Health Care Dist., 10 OCAHO no. 1127, 7-8 (2008) 
(``Because Sec.  1324b was expressly modeled on Title VII of the Civil 
Rights Act of 1964 as amended . . . case law developed under that 
statute has long been held to be persuasive in interpreting Sec.  
1324b.''); see also Int'l Union v. Johnson Controls, Inc., 499 U.S. 
187, 199 (1991) (stating that, in the context of Title VII, ``absence 
of a malevolent motive does not convert a facially discriminatory 
policy into a neutral policy with a discriminatory effect. Whether an 
employment practice involves disparate treatment through explicit 
facial discrimination does not depend on why the employer discriminates 
but rather on the explicit terms of the discrimination.'').
    New paragraph (f) would define the phrase ``for purposes of 
satisfying the requirements of section 1324a(b).'' This proposed 
definition incorporates the well-established construction of this 
statutory language to include all of an employer's efforts to verify an 
individual's employment eligibility. Thus, this definition includes not 
only the process related to completing the DHS Employment Eligibility 
Verification Form I-9, but also any other employment eligibility 
verification practices, such as the DHS electronic employment 
eligibility verification (E-Verify) process. See, e.g., United States 
v. Mar-Jac Poultry, Inc., 10 OCAHO no. 1148, 11 (2012).
    New paragraph (g) would define the phrase ``for the purpose or with 
the intent of discriminating against an individual in violation of 
paragraph (1),'' as that phrase is used in 8 U.S.C. 1324b(a)(6). This 
proposed definition clarifies that the act of intentionally treating an 
individual differently based on national origin or citizenship status 
is sufficient to demonstrate discriminatory intent regardless of the 
explanation for the discrimination, and regardless of whether it is 
based on animus or hostility. See United States v. Life Generations 
Healthcare, LLC, 11 OCAHO no. 1227, 22-23 (2014) (stating that the 
discriminatory intent inquiry under 8 U.S.C. 1324b(a)(6) involves 
``ask[ing] the question whether the outcome would have been different 
if the groups had been reversed''). For instance, an employer's request 
that an individual present more or different documents than required 
under 8 U.S.C. 1324a(b) because of the individual's citizenship status 
or national origin constitutes intentional discrimination, even if the 
employer thought that requesting such documents would help the 
individual complete the Form I-9 faster or even if the employer was 
completely unaware of the prohibition against discrimination in the 
employment eligibility verification process. See id.
    New paragraph (h) would define ``hiring.'' This proposed definition 
is intended to make clear that conduct during the entire hiring 
process, and not solely the employer's final hiring decision, may 
constitute an unfair immigration-related employment practice. This 
definition is consistent with the Special Counsel's longstanding 
interpretation and is well-established in relevant administrative 
decisions. See, e.g., Mar-Jac Poultry, Inc., 10 OCAHO no. 1148 at 11; 
Mid-Atlantic Reg'l Org. Coal. v. Heritage Landscape Servs., LLC, 10 
OCAHO no. 1134, 8 (2010).
    New paragraph (i) would contain a revised and simplified definition 
of ``injured party.'' It would clarify that this term includes any 
person who claims to be adversely affected by an unfair immigration-
related employment practice.
    New paragraph (j) would define the statutory phrase ``more or 
different documents than are required under such section.'' In 
accordance with both the weight of OCAHO authority and the longstanding 
interpretation of the Special Counsel, this proposed definition 
provides that an employer's request that an individual present specific 
documents from the Form I-9 Lists of Acceptable Documents for 
employment eligibility verification purposes violates 8 U.S.C. 
1324b(a)(6) where that request is made because of the individual's 
national origin or citizenship status. See, e.g., United States v. 
Townsend Culinary, Inc., 8 OCAHO no. 1032, 454, 507 (1999); United 
States v. Strano Farms, 5 OCAHO no. 748, 206, 222-23 (1995); United 
States v. Beverly Ctr., 5 OCAHO no. 762, 347, 351 (1995); United States 
v. A.J. Bart, Inc., 3 OCAHO no. 538, 1374, 1387 (1993); see also United 
States v. Zabala Vineyards, 6 OCAHO no. 830, 72, 85-88 (1995) (holding, 
prior to the enactment of IIRIRA, that 8 U.S.C. 1324b(a)(6) did not 
prohibit an employer's request for specific documents ``in the absence 
of evidence that . . . aliens but not other new hires were required to 
rely on and produce specific documents''). To interpret the statute 
otherwise would allow employers to discriminate against an individual 
by imposing more restrictions on the documentation that an individual 
can show to establish identity and employment authorization than 8 
U.S.C. 1324a(b) provides.
    New paragraph (k) would contain a revised definition of ``protected 
individual.'' This proposed revision restructures the existing 
definition for the purpose of clarity, and replaces a reference to the 
former Immigration and Naturalization Service with the DHS, in 
accordance with the HSA.
    New paragraph (l) would define ``recruitment and referral for a 
fee.'' This proposed definition is intended to make clear that conduct 
during the entire process of recruitment or referral for a fee, and not 
solely the employer's final recruitment or referral decision, may 
constitute an unfair immigration-related employment practice. This 
definition is consistent with the Special Counsel's longstanding 
interpretation and is well-established in relevant administrative

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decisions. See, e.g., Mid-Atl. Reg'l Org. Coal., 10 OCAHO no. 1134 at 8 
(``The governing statute specifically applies to recruitment for 
employment as well as to hiring, and OCAHO cases have long held that it 
is the entire selection process, and not just the hiring decision 
alone, which must be considered in order to ensure that there are no 
unlawful barriers to opportunities for employment.'').
    New paragraph (m) would contain a revised definition of 
``respondent.'' This proposed revision is intended to clarify that an 
entity against whom the Special Counsel opens an investigation is 
considered a respondent, regardless of whether the investigation was 
initiated by a charge filed under 8 U.S.C. 1324b(b)(1) or the Special 
Counsel's independent statutory authority to investigate possible 
unfair immigration-related employment practices pursuant to 8 U.S.C. 
1324b(d)(1).
    New paragraph (n) would contain a revised definition of ``Special 
Counsel.'' This proposed revision makes clear that a duly authorized 
designee may act as the Special Counsel when the Special Counsel 
position is vacant.
Section 44.102 Computation of Time
    Section 44.102 is added to provide clarification regarding the 
calculation of time periods specified in part 44.
Section 44.200 Unfair Immigration-Related Employment Practices
    Paragraph (a) sets forth the three forms of prohibited unfair 
immigration-related employment practices: (1) Discrimination with 
respect to hiring, recruiting or referring for a fee, or discharging an 
individual; (2) intimidation or retaliation; and (3) unfair documentary 
practices. The proposed revisions would clarify specific parameters of 
conduct that constitute unfair documentary practices.
    Paragraph (a)(3) sets forth the prohibition against unfair 
documentary practices. The proposed revisions would replace the term 
``documentation abuses'' with ``unfair documentary practices'' to more 
clearly describe the prohibited conduct. Further, to conform to the 
statutory text, which was amended by section 421 of IIRIRA, these 
proposed revisions clarify that a showing of intentional discrimination 
is required to establish an unfair documentary practice under 8 U.S.C. 
1324b(a)(6). Additionally, the proposed revisions would clarify, based 
on the plain language of the statutory text, that unfair documentary 
practices do not require a showing that the discriminatory documentary 
request was made as a condition of employment. Liability for unfair 
documentary practices should not depend on whether an individual can 
prove that the documentary request was made as a condition of 
employment. Furthermore, the statutory text describing unfair 
documentary practices does not include any language requiring 
rescission of an employment offer, discharge, or other economic harm to 
establish liability. See Mar-Jac Poultry, Inc., 10 OCAHO no. 1148 at 11 
(``[A]n `injury' is not necessary to establish liability for document 
abuse.'' (quoting United States v. Patrol & Guard Enters., Inc., 8 
OCAHO no. 1040, 603, 625 (2000))); Townsend Culinary, Inc., 8 OCAHO no. 
1032, 454, 498-500 (finding pattern or practice of unfair documentary 
practices and assessing civil penalties for violations without 
requiring a showing of economic harm); Robison Fruit Ranch, Inc. v. 
United States, 147 F.3d 798, 802 (9th Cir. 1998) (request may be an 
unfair documentary practice even if individual was able to comply with 
the request). These revisions are consistent with the Special Counsel's 
longstanding interpretation of the statute.
    Paragraph (b) sets forth three circumstances in which paragraph 
(a)(1) does not apply. The proposed revision would replace the 
reference to paragraph (a) with a reference to paragraph (a)(1) to 
conform the exceptions language to the statutory text.
Section 44.202 Counting Employees for Jurisdictional Purposes
    This proposed section is newly added and would codify the existing 
process by which the Special Counsel determines whether the Special 
Counsel or the Equal Employment Opportunity Commission (EEOC) has 
jurisdiction over a claim of national origin discrimination under 8 
U.S.C. 1324b(a)(1). This section makes clear that the Special Counsel's 
office will count all full-time and part-time employees employed on the 
date of the alleged discrimination to determine whether it has 
jurisdiction over an entity charged with national origin discrimination 
under 8 U.S.C. 1324b(a)(1). In assessing whether the EEOC might have 
primary jurisdiction over allegations of national origin 
discrimination, the Special Counsel will also rely on the method for 
calculating an entity's number of employees set forth in Title VII of 
the Civil Rights Act of 1964. See 42 U.S.C. 2000e(b). The Special 
Counsel will refer section 1324b(a)(1) national origin discrimination 
charges to the EEOC where an employer has 15 or more employees for each 
working day in each of 20 or more calendar weeks during the current or 
preceding calendar year. Id. If an employer does not meet this 
threshold, but employed more than three employees on the date of the 
alleged discrimination, the Special Counsel will investigate the 
charge.
Section 44.300 Filing a Charge
    The proposed revision to paragraph (a) would replace a reference to 
the former Immigration and Naturalization Service with the DHS, in 
accordance with the HSA, and simplify the paragraph's structure.
    Paragraph (b) would be revised to simplify the existing language 
and clarify that a charge is deemed to be filed on the date it is 
transmitted or delivered in instances in which it is filed by a method 
other than by mail.
    Paragraph (c) would be revised to remove specific references to 
addresses, in order to avoid the need for future technical revisions; 
to codify the existing practice of accepting charge filings through 
means other than mail and courier delivery; and to account for new 
methods of charge filings in the future.
    Paragraph (d) would be revised to be consistent with the statutory 
text. Section 1324b(b)(2) of title 8 of the United States Code 
prohibits the filing of a charge described in section 1324b(a)(1)(A) 
with the Special Counsel if a charge with respect to that practice 
based on the same set of facts has been filed with the EEOC under title 
VII of the Civil Rights Act of 1964, unless the charge is dismissed as 
being outside the scope of such title. Current paragraph (d) broadens 
this prohibition to exclude not only duplicative national origin claims 
under section 1324b(a)(1)(A) but also citizenship status claims under 
section 1324b(a)(1)(B) that are based on the same set of facts as an 
EEOC charge. The amendment would make this paragraph consistent with 
the statute by limiting this prohibition to only national origin 
charges filed with the Special Counsel under section 1324b(a)(1)(A).
Section 44.301 Receipt of Charge
    This section would be substantially reorganized to eliminate 
ambiguities in the existing regulations regarding the process the 
Special Counsel follows when a charge is received. Paragraph (a) would 
be revised to clarify when the obligation is triggered under 8 U.S.C. 
1324b(b)(1) to provide notice to the charging party and respondent of 
the Special Counsel's receipt of a charge.
    Paragraph (b) would set forth the contents of the Special Counsel's

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written notice to the charging party, replace a reference to the former 
Immigration and Naturalization Service with the DHS, in accordance with 
the HSA, and conform language regarding the charging party's time frame 
for filing a complaint to existing statutory text. See 8 U.S.C. 
1324b(d)(2).
    New paragraph (c) would be substantially similar to existing 
paragraph (e), which sets forth the contents of the Special Counsel's 
notice to the respondent.
    New paragraph (d) would combine existing paragraphs (c)(1) and 
(d)(2) to more clearly state the process for handling inadequate 
submissions filed with the Special Counsel. This proposed revision also 
applies the methodology in revised Sec.  44.300(b) to determine when an 
inadequate submission later deemed to be a charge is considered filed 
and when additional information provided pursuant to the Special 
Counsel's request in response to an inadequate submission is considered 
timely. While the statute requires that a charge be filed with the 
Special Counsel within 180 days of the alleged violation, see 8 U.S.C. 
1324b(d)(3), the statute does not speak to the handling or processing 
of inadequate submissions. Existing regulations address inadequate 
submissions as a practical necessity to prevent the Special Counsel's 
office from investigating claims that clearly fall outside of its 
jurisdiction, while at the same time ensuring that timely-filed 
meritorious charges that may be missing some information can still be 
considered timely. The revisions to the current regulations aim to set 
forth more clearly and revise the procedures for handling inadequate 
submissions, including by retaining the 45-day grace period to allow a 
charging party to provide requested additional information consistent 
with the Special Counsel's long-standing practice. This grace period is 
consistent with the remedial purpose of section 1324b. See United 
States v. Mesa Airlines, 1 OCAHO no. 74, 461, 513 (1989) (recognizing 
the ``remedial purpose'' of section 1324b). That purpose would be 
frustrated, and meritorious claims would be foreclosed, if the Special 
Counsel imposed a harsh and rigid rule requiring dismissal of timely-
filed charges that may allege a violation of section 1324b, but that do 
not set forth all the elements necessary to be deemed a complete 
charge.
    New paragraph (e) would be substantially similar to existing 
paragraph (c)(2), with an additional revision to ensure consistency in 
the regulations on the determination of the filing date of an 
inadequate submission.
    New paragraph (f) would be added to account for the referral of 
incomplete or complete charges to the Special Counsel by another 
government agency.
    New paragraph (g) would be substantially similar to existing 
paragraph (d)(1), with an additional clarification regarding the 
dismissal of inadequate submissions, and the elimination of the term 
``with prejudice.'' These proposed revisions would incorporate the 
standards set forth in administrative decisions for determining whether 
an incomplete or complete charge that is filed late should nonetheless 
be considered timely, including when a dismissed incomplete charge is 
resubmitted for consideration based on equitable reasons. It is well-
established in relevant administrative decisions that the 180-day 
charge filing period is not a jurisdictional prerequisite, but is 
subject to waiver, estoppel, and equitable tolling. See, e.g., Lardy v. 
United Airlines, Inc., 4 OCAHO no. 595, 31, 73 (1994); Halim v. Accu-
Labs Research, Inc., 3 OCAHO no. 474, 765, 779 (1992). While those 
equitable modifications of filing deadlines are sparingly applied, they 
may be available particularly where the failure to meet a deadline 
arose from circumstances beyond the charging party's control. See, 
e.g., Sabol v. N. Mich. Univ., 9 OCAHO no. 1107, 4-5 (2004).
Section 44.302 Investigation
    Paragraph (a) would be revised to describe more broadly the means 
by which the Special Counsel may undertake an investigation of possible 
unfair immigration-related employment practices, including the 
authority to solicit testimony as necessary.
    New paragraph (b) would authorize the Special Counsel to require 
any person or other entity to present Forms I-9 for inspection. The 
Immigration and Nationality Act expressly provides the Special Counsel 
with authority to inspect Forms I-9. See 8 U.S.C. 1324a(b)(3).
    New paragraph (c) would be substantially similar to existing 
paragraph (b), but would broaden the list of items that an entity or 
person must permit the Special Counsel to access.
    New paragraph (d) would codify the preservation obligations of a 
respondent that is the subject of an investigation by the Special 
Counsel. Such obligations are necessary to ensure that the Special 
Counsel's right to access and examine evidence is preserved. See id. 
1324b(f)(2). In addition, these obligations are reasonable and 
appropriate in light of the Special Counsel's authority to seek a 
subpoena requiring the production of relevant evidence. Id. Finally, 
since at least 2006, all entities subject to an investigation by the 
Special Counsel have been instructed in writing, at the outset of the 
investigation, to preserve relevant documents. These obligations are 
also consistent with ``litigation hold'' requirements under the Federal 
Rules of Civil Procedure. See, e.g., Fed. R. Civ. P. 16(b)(3)(B)(iii), 
26(b)(5)(B), 45(e)(2)(B).
Section 44.303 Determination
    Paragraph (a) would be revised and simplified.
    Paragraph (b) would be revised to more clearly set forth the time 
frame for the Special Counsel to issue letters of determination.
    Paragraph (c) would be revised to replace a reference to the former 
Immigration and Naturalization Service with the DHS, in accordance with 
the HSA.
    Paragraph (d) would be revised to clarify that the Special Counsel 
is not bound by the 90-day statutory time limit on filing a complaint 
that is applicable to individuals filing private actions. The only 
statutory time limit on the Special Counsel's authority to file a 
complaint based on a charge is contained in 8 U.S.C. 1324b(d)(3), 
entitled ``Time limitations on complaints,'' and states that ``[n]o 
complaint may be filed respecting any unfair immigration-related 
employment practice occurring more than 180 days prior to the date of 
the filing of the charge with the Special Counsel.'' The 90-day 
statutory time limit, in contrast, is contained in 8 U.S.C. 
1324b(d)(2), entitled ``Private actions,'' and states that ``the person 
making the charge may (subject to paragraph (3)) file a complaint 
directly before such a judge within 90 days after the date of receipt 
of the notice.'' The ``Private actions'' provision makes clear that the 
Special Counsel has a right to ``investigate the charge or to bring a 
complaint . . . during such 90-day period.'' Id. Nothing in the statute 
explicitly states that the Special Counsel is subject to that 90-day 
limit, however, or prohibits the Special Counsel's office from 
continuing to investigate a charge or from filing its own complaint 
based on a charge even after the 90-day period for a charging party to 
file a private complaint has run.
    Relevant administrative decisions interpreting section 1324b 
support the conclusion that the Special Counsel is not bound by the 
statutory time limits that are applicable to individuals filing private 
actions. See, e.g., United States v. Agripac, Inc., 8 OCAHO no. 1028, 
399, 404 (1999) (stating that section 1324b ``does not set out in terms 
any

[[Page 53970]]

particular time within which the Special Counsel must file a complaint 
before an administrative law judge''); United States v. Gen. Dynamics 
Corp., 3 OCAHO no. 517, 1121, 1156 (1993) (``The statute contains no 
time limitations on the Special Counsel's authority to conduct 
independent investigations or to subsequently file complaints based on 
such investigations.''). The Special Counsel's position is also 
consistent with the Supreme Court's interpretation of a similar 
provision in Title VII of the 1964 Civil Rights Act. See Occidental 
Life Ins. Co. of Calif. v. EEOC, 432 U.S. 355, 361 (1977) (holding that 
the EEOC is not subject to a complaint-filing deadline where the 
statutory language does not explicitly contain such a deadline and the 
legislative history does not support it). Given that section 1324b is 
modeled after Title VII--with similar charge-filing procedures and 
virtually identical timetables--the Supreme Court's ruling on this 
issue is highly instructive. See Sodhi, 10 OCAHO no. 1127 at 7-8.
    The Special Counsel's authority to file a complaint based on a 
charge is, however, subject to some time limits. Similar to the EEOC, 
the Special Counsel is bound by equitable limits on the filing of a 
complaint. See EEOC v. Propak Logistics, Inc., 746 F.3d 145 (4th Cir. 
2014). In addition, the Special Counsel must comply with the five-year 
statutory time limit in 28 U.S.C. 2462 for bringing actions to impose 
civil penalties.
Section 44.304 Special Counsel Acting on Own Initiative
    Paragraph (a) sets forth the process for the Special Counsel to 
conduct an investigation on his or her own initiative. This paragraph 
would be revised to conform with the Special Counsel's existing 
practice of notifying a respondent by certified mail of an 
investigation opened under this paragraph. Comments addressing whether 
the use of certified mail is effective are encouraged. For commenters 
who believe another method is preferable (such as regular mail or 
regular mail with delivery tracking), comments explaining why another 
method is preferable are also encouraged.
    Paragraph (b) would be revised to make the time frame for the 
Special Counsel to bring a complaint based on an investigation opened 
on the Special Counsel's own initiative pursuant to 8 U.S.C. 
1324b(d)(1) and 28 CFR 44.304(a) consistent with the statutory text. 
The statutory text can be reasonably read to provide no time limit for 
the Special Counsel to file a complaint. United States v. Fairfield 
Jersey, Inc., 9 OCAHO no. 1069, 5 (2001) (acknowledging the absence of 
a statutory time limitation for the filing of a complaint arising out 
of an independent investigation). The statute provides only that the 
Special Counsel's authority to file a complaint based on such 
investigations be ``subject to'' 8 U.S.C. 1324b(d)(3), which in turn 
specifies that ``[n]o complaint may be filed respecting any unfair 
immigration-related employment practice occurring more than 180 days 
prior to the date of the filing of the charge with the Special 
Counsel.'' 8 U.S.C. 1324b(d)(1), (3) (emphasis added). Where the 
Special Counsel is conducting an investigation on his or her own 
initiative, no ``charge'' has been filed. The most reasonable 
application of 8 U.S.C. 1324b(d)(3) in that circumstance, therefore, is 
that the Special Counsel may not file a complaint unless an 
investigation on the Special Counsel's own initiative pursuant to 8 
U.S.C. 1324b(d)(1) was opened within 180 days of the last known act of 
discrimination, as the opening of the Special Counsel's investigation 
is the nearest equivalent to the filing of a charge. The current 
regulations require the Special Counsel to file a complaint ``where 
there is reasonable cause to believe that an unfair immigration-related 
employment practice has occurred within 180 days from the date of the 
filing of the complaint.'' 28 CFR 44.304(a) (emphasis added). That 
requirement unnecessarily restricts the Special Counsel's enforcement 
authority and is not required by the language of the statute. While the 
Special Counsel and respondents have entered into stipulations to 
extend the complaint-filing date in circumstances when the Special 
Counsel requires more time to conduct an investigation under 8 U.S.C. 
1324b(d)(1) or to facilitate settlement discussions, it is appropriate 
to revise the regulations to better accord with the statutory language. 
Similar to the EEOC, the Special Counsel is bound by equitable limits 
on the filing of a complaint. Propak Logistics, 746 F.3d 145. In 
addition, the Special Counsel must comply with the five-year statutory 
time limit for bringing actions to impose civil penalties. 28 U.S.C. 
2462.
Section 44.305 Regional Offices
    The proposed rule would amend this section to conform its language 
to 8 U.S.C. 1324b(c)(4).

Public Participation

    Please note that all comments received are considered part of the 
public record and are made available for public inspection online at 
https://www.regulations.gov. The information made available includes 
personal identifying information (such as name and address) voluntarily 
submitted by the commenter.
    If you want to submit personal identifying information (such as 
your name and address) 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. The docket file 
will be available for public inspection during normal business hours at 
1425 New York Avenue, Suite 9000, Washington, DC 20005. Upon request, 
individuals who require assistance to review comments will be provided 
with appropriate aids such as readers or print magnifiers. If you wish 
to inspect the agency's public docket file in person, please see the 
FOR FURTHER INFORMATION CONTACT paragraph above to schedule an 
appointment.
    Copies of this rule may be obtained in alternative formats (large 
print, Braille, audio tape, or disc), upon request, by calling DeJuana 
Grant at (202) 616-5594. TTY/TDD callers may dial toll-free (800) 237-
2515 to obtain information or request materials in alternative formats.

Regulatory Procedures

Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and Regulatory Review)

    The rule has been drafted and reviewed in accordance with Executive

[[Page 53971]]

Order 12866 (Sept. 30, 1993), and Executive Order 13563 (Jan. 18, 
2011). Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other effects; distributive impacts; and equity). Executive Order 
13563 emphasizes the importance of quantifying both costs and benefits 
(while recognizing that some benefits and costs are difficult to 
quantify), reducing costs, harmonizing rules, and promoting 
flexibility.
    Under Executive Order 12866, the Department must determine whether 
a regulatory action is ``significant'' and, therefore, subject to the 
requirements of the Executive Order and Office of Management and Budget 
(OMB) review. Section 3(f) of Executive Order 12866 defines a 
``significant regulatory action'' as any regulatory action that is 
likely to result in a rule ``that may: (1) Have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) Materially alter the budgetary impacts of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.''
    The Department has determined that the proposed rule is not an 
economically significant regulatory action under section 3(f)(1) of 
Executive Order 12866 because the Department estimates that its annual 
economic impact will be a one-time, first-year-only cost of $12.3 
million--far less than $100 million. The Department has quantified and 
monetized the costs of the proposed rule over a period of 10 years 
(2016 to 2025) to ensure that its estimate captures all major benefits 
and costs, but has determined that all quantifiable costs will only be 
incurred during the first year after the regulations are implemented. 
Because the Department was unable to quantify the benefits of the 
proposed rule due to data limitations, the benefits are described 
qualitatively. When summarizing the costs of specific provisions of the 
proposed rule, the Department presents the 10-year present value of the 
proposed rule requirements.
    The Department considered the following factors when measuring the 
proposed rule's impact: (a) Employers familiarizing themselves with the 
rule, (b) employers reviewing and revising their employment eligibility 
verification policy, and (c) employers and employees viewing training 
webinars. The largest first-year cost is the cost employers would incur 
to review and revise their employment eligibility verification 
policies, which is $7,840,566. The next largest cost is the cost 
employers would incur to familiarize themselves with the rule, which is 
$4,448,548.
    The economic analysis presented below covers all employers with 
four or more employees, consistent with the statute's requirement that 
a ``person or entity'' have more than three employees to fall within 
OSC's jurisdiction for citizenship status and national origin 
discrimination in hiring, firing, and recruitment or referral for a 
fee. 8 U.S.C. 1324(a)(2).
    In the following sections, the Department first presents a subject-
by-subject analysis of the costs of the proposed rule. The Department 
then presents the undiscounted 10-year total cost ($12.3 million) and a 
discussion of the expected benefits of the proposed rule. The costs are 
incurred entirely in the first year; thus, they are not discounted.
    The Department did not identify any transfer payments associated 
with the provisions of the rule. Transfer payments, as defined by OMB 
Circular A-4, are ``monetary payments from one group to another that do 
not affect total resources available to society.'' OMB Circular A-4 at 
38 (Sept. 17, 2003). Transfer payments are associated with a 
distributional effect but do not result in additional costs or benefits 
to society.
    In the subject-by-subject analysis, the Department presents the 
labor and other costs for each provision of the proposed rule. Exhibit 
1 displays the labor categories that are expected to experience an 
increase in level of effort (workload) due to the proposed rule. To 
estimate the cost, the Department multiplied each labor category's 
hourly compensation rate by the level of effort. The Department used 
wage rates from the Mean Hourly Wage Rate calculated by the Bureau of 
Labor Statistics.\1\ Wage rates are adjusted using a loaded wage factor 
to reflect total compensation, which includes health and retirement 
benefits. The loaded wage factor was calculated as the ratio of average 
total compensation to average wages in 2014, which resulted in 1.43 for 
the private sector.\2\ The Department then multiplied the loaded wage 
factor by each labor category's wage rate to calculate an hourly 
compensation rate.
---------------------------------------------------------------------------

    \1\ Bureau of Labor Statistics, May 2014 National Occupational 
Employment and Wage Estimates: United States (Mar. 25, 2015), https://www.bls.gov/oes/current/oes_nat.htm.
    \2\ The Department calculated average total compensation by 
taking the average of the cost of total compensation for all workers 
in December, September, June, and March of 2014 ((31.32 + 30.32 + 
30.11 + 29.99)/4 = 30.44), and calculated average wages by taking 
the average of the cost of wages and salaries for those employees in 
each of those four months ((21.72 + 21.18 + 21.02 + 20.96)/4 = 
21.22). See BLS, News Release, Employer Costs for Employee 
Compensation--December 2014, Table 5 (Mar. 11, 2015); BLS, News 
Release, Employer Costs for Employee Compensation--September 2014, 
Table 5 (Dec. 10, 2014); BLS, News Release, Employer Costs for 
Employee Compensation--June 2014, Table 5 (Sept. 10, 2014); BLS, 
News Release, Employer Costs for Employee Compensation--March 2014, 
Table 5 (June 11, 2014). (Each of these news releases is available 
at https://www.bls.gov/schedule/archives/ecec_nr.htm.) The Department 
then calculated the loaded wage factor by taking the ratio of 
average total compensation to average total wages (30.44/21.22 = 
1.43).

                               Exhibit 1--Calculation of Hourly Compensation Rates
----------------------------------------------------------------------------------------------------------------
                                                                                                      Hourly
                            Position                              Average hourly    Loaded wage    compensation
                                                                     wage \a\       factor \b\    rate c = a x b
----------------------------------------------------------------------------------------------------------------
Human Resources Manager.........................................          $54.88            1.43        $78.4784
Attorney........................................................           64.17  ..............         91.7631
----------------------------------------------------------------------------------------------------------------


[[Page 53972]]

1. Subject-by-Subject Analysis
a. Employers Familiarize Themselves With the Rule
    During the first year of the rule, employers with a developed human 
resources practice would need to read and review the rule to learn 
about the new requirements. The Department determined that no costs 
would be incurred by employers to familiarize themselves with the rule 
in years two through ten because (1) the cost for an existing employer 
to familiarize itself with the rule if it delays doing so until a 
subsequent year is already incorporated into the first-year cost 
calculations; and (2) for employers that are newly created in years two 
through ten, the cost of familiarization is the same as exists under 
the current regulations and, therefore, there is no incremental cost.
    Employers would incur labor cost to familiarize themselves with the 
new rule. To estimate the labor cost for this provision, the Department 
first estimated the number of employers that would need to familiarize 
themselves with the proposed rule by relying on the number of 
organizational members in the Council for Global Immigration (CGI) and 
the Society for Human Resource Management (SHRM).\3\ The Department 
used the number of organizational members in these two organizations as 
a proxy for the number of employers with a developed human resources 
practice that can be expected to institutionalize the regulatory 
changes. The Department acknowledges the possible overlap between SHRM 
and CGI members. The Department's analysis model therefore likely 
overestimates, to some extent, the number of entities (and thus, the 
costs) by assuming that an entity is a member of either SHRM or CGI, 
but not both.
---------------------------------------------------------------------------

    \3\ The Department obtained the number of individual and 
organizational members in CGI and the number of individual members 
of SHRM directly from these two organizations. Data on the number of 
organizational members of SHRM was not available. To estimate the 
number of organizational members in SHRM, the Department applied the 
same ratio of organizational members (230) to individual members 
(1,100) in CGI to the number of individual members in SHRM 
(270,000), which results in 56,455 organizational members (270,000 x 
230/1,100). The Department added the number of organizational 
members in CGI (230) and SHRM (56,455) to estimate the number of 
organizational members in the analysis (56,685), which serves as a 
proxy for the number of employers that would need to take action 
because of the proposed rule.
---------------------------------------------------------------------------

    The Department then multiplied the estimated number of employers by 
the assumed number of human resources (HR) managers per employer, the 
time required to read and review the new rule, and the hourly 
compensation rate. The Department estimated this one-time cost to be 
$4,448,548.\4\
---------------------------------------------------------------------------

    \4\ The Department estimated the cost of this review by 
multiplying the estimated number of employers (56,685) by the number 
of HR managers per employer (1), the time needed to read and review 
the rule (1 hour), and the hourly compensation rate ($78.4784). This 
calculation yields a labor cost of $4,448,548.
---------------------------------------------------------------------------

b. Employers Review and Revise Employment Eligibility Verification 
Policies
    The proposed rule would require some employers to revise their 
employment eligibility verification policies. Although all U.S. 
employers must ensure that a Form I-9 is properly completed for each 
individual they hire for employment in the United States to verify the 
individual's identity and employment authorization in accordance with 
their obligations under 8 U.S.C. 1324a, only a subset of employers has 
detailed written policies addressing compliance with section 1324b. The 
Department assumed that these employers save their policies in an 
electronic format that can be readily modified. For the policy 
revisions, employers would complete a simple ``search-and-replace'' to 
update the agency's name and possibly replace the term ``documentation 
abuse(s)'' with ``unfair documentary practice(s).''
    Only the very limited number of those employers that have detailed 
written employment eligibility policies would need to make additional 
modifications to their policies. The Department estimated costs only 
for those employers that have written employment eligibility 
verification policies and that would be expected to review their 
policies and make changes as needed. The time involved would depend on 
the changes employers need to make and how many sections of the policy 
would need to be modified.
    Employers with policies for verifying employment eligibility (and 
possibly employers with hiring or termination policies, even if they 
lack policies for verifying employment eligibility) might conduct a 
front-to-back review of their policies to determine whether any 
additional changes are needed.
    These changes and reviews would represent an upfront, one-time cost 
to employers. The Department estimates this cost as the sum of the cost 
of revising the policies by making word replacements; the cost, for 
some employers, of making additional changes beyond word replacements; 
and the cost of conducting a front-to-back review of the employment 
eligibility verification policies.
    To estimate the labor cost for making word replacements to the 
employment verification policies, the Department first estimated the 
number of employers that would make these revisions because of the 
proposed rule by relying on the number of organizational members in the 
SHRM and CGI. The Department then multiplied the estimated number of 
employers by the assumed number of HR managers per employer, the time 
required to make the revisions, and the hourly compensation rate.\5\ 
This calculation yields $1,112,137 in labor costs related to revising 
employment eligibility verification policies in the first year of the 
rule.
---------------------------------------------------------------------------

    \5\ To estimate the cost of making revisions, the Department 
multiplied the estimated number of employers (56,685) by the assumed 
number of HR managers per employer (1), the hourly compensation rate 
($78.4784), and the time required to make the revisions (0.25 
hours). This calculation results in a cost of $1,112,137.
---------------------------------------------------------------------------

    To estimate the additional cost to those employers making changes 
beyond word replacements in the first year of the proposed rule, the 
Department assumed that 5 percent of employers (i.e., the number of 
organizational members in CGI and SHRM) would make these changes. The 
Department then multiplied the number of employers that would make 
these additional changes by the assumed number of HR managers per 
employer, the time required to make the changes, and the hourly 
compensation rate. This calculation yields $55,607 in labor costs in 
the first year of the rule.\6\
---------------------------------------------------------------------------

    \6\ To estimate the cost of making changes beyond word 
replacements, the Department first calculated the number of 
employers that would make these changes. The Department obtained the 
number of employers that would make these additional changes by 
multiplying the number of employers (56,685) by the assumed 
percentage of employers that would make these additional changes 
(5%). This calculation yields the number 2,834.25. The Department 
then multiplied that number of employers (2,834.25) by the number of 
HR managers per employer (1), the hourly compensation rate 
($78.4784), and the time required to make the changes (0.25 hours). 
This calculation results in a cost of $55,607.
---------------------------------------------------------------------------

    To estimate the cost of conducting a front-to-back review of the 
policies for verifying employment eligibility (or hiring and 
termination policies), the Department multiplied the number of 
employers (i.e., the number of organizational members in CGI and SHRM) 
by the number of HR managers per employer, the time required for a 
review, and the hourly compensation rate. This calculation yields 
$6,672,822 in labor costs in the first year of the rule.\7\
---------------------------------------------------------------------------

    \7\ To estimate the cost of reviewing the policies, the 
Department assumed, out of an abundance of caution, that all of the 
employers affiliated with CGI or SHRM would dedicate one HR manager 
to conduct a front-to-back review of their policies. Accordingly, 
the Department multiplied the number of employers (56,685) by the 
assumed number of HR managers per employer (1), the hourly 
compensation rate ($78.4784), and the time required to review the 
policies (1.5 hours). This calculation results in a cost of 
$6,672,822.

---------------------------------------------------------------------------

[[Page 53973]]

    In total, the one-time costs to employers to revise the policies 
for verifying employment eligibility by making word replacements, to 
make additional changes beyond word replacements in the case of some 
employers, and to conduct a front-to-back review of those policies, are 
estimated to be $7,840,566 during the first year of rule 
implementation.
c. Employers and Employees View Training Webinars
    During the first year of implementation, as a part of the 
Department's ongoing educational webinar series, the Department expects 
to schedule three live, optional employer training webinars per month 
and one live, optional advocate/employee training webinar per month to 
assist employers, employees, attorneys, and advocates in understanding 
the changes resulting from the rule. These live one-hour training 
webinars would cover the full spectrum of employer obligations and 
employee rights under the statute. The Department also expects to 
create three one-hour recorded webinars: One for employers and their 
representatives and two for employees and their representatives (one in 
English and one in Spanish). The Department anticipates that 
participation will occur mostly through viewings of the one-hour 
recorded webinars. The recorded training webinars developed to explain 
the post-rule regulatory and statutory obligations and rights would 
eventually replace the Department's existing live webinars. Therefore, 
the Department has calculated these costs for employers, employees, and 
their representatives to be incurred in the first year when learning 
about the changes, whether through a live or recorded training webinar. 
Thereafter, newly-created employers would be viewing training webinars 
instead of (not in addition to) viewing current webinars, with no 
incremental costs incurred.
    To estimate the cost to employers of viewing training webinars, the 
Department summed the labor costs for those viewing live webinars and 
the labor costs for those viewing recorded webinars. To estimate the 
number of employers viewing the live webinars, the Department used 
statistics on the average number of employer participants in live 
webinars. To estimate the number of employers viewing a recorded 
webinar, the Department used data on the number of viewings of the 
Department's educational videos pertaining to employer obligations 
under 8 U.S.C. 1324b that are posted on YouTube. Both estimates assume 
a 15-percent increase in participation following the implementation of 
the proposed rule.\8\ The Department multiplied the number of employers 
expected to view a webinar (represented by their HR managers) by the 
hourly compensation rate, the time required to view a webinar, and the 
number of training webinars in the first year for both live and 
recorded webinars. The total one-time cost to employers for viewing 
live and recorded webinars is estimated to be $26,447.\9\
---------------------------------------------------------------------------

    \8\ On average, 44.7 individuals participate in live webinars 
for employers. The Department assumed that there would be a 15-
percent increase in the number of participants following the 
implementation of the proposed rule. Thus, the Department estimated 
costs for seven employers (i.e., 15 percent of the 44.7 individuals) 
related to viewing the live webinar. On average, 567 individuals 
have viewed each of the educational YouTube videos. Thus, the 
Department estimated costs for 85 employers (i.e., 15 percent of the 
567 individuals) related to viewing the recorded webinar.
    \9\ The Department estimated the cost of viewing the live 
webinars by taking the product of the number of employer 
representatives (HR managers) viewing the live webinar (7), the 
hourly compensation rate ($78.4784), the number of webinars per year 
(36), and the time required to view the webinar (1 hour). This 
yielded a cost of $19,777. The Department then estimated the cost of 
viewing the recorded webinars by taking the product of the number of 
employer representatives (HR managers) viewing the recorded webinars 
(85), the hourly compensation rate ($78.4784), the number of 
webinars (1), and the time required to view the webinar (1 hour). 
This yielded a cost of $6,671. The total cost of viewing webinars 
was estimated by taking the sum of the cost of viewing live webinars 
and the cost of viewing recorded webinars, to obtain a total cost of 
$26,447.
---------------------------------------------------------------------------

    To estimate the cost to employees of viewing live training 
webinars, the Department used existing statistics on the average 
participation of employees. To estimate the cost to employees of 
viewing recorded webinars, the Department used the employer-to-employee 
ratio of participation for the live webinars and applied it to the 
number of views of the Department's educational videos on YouTube. Both 
estimates assume a 5-percent increase in participation following the 
implementation of the proposed rule.\10\ These estimates are only 
related to the webinars recorded in English, since the Department does 
not expect an increase in the number of views of the Spanish webinars 
following the implementation of the rule. In the Department's 
experience, in many cases the live Spanish webinars that have been 
offered have been canceled due to low turnout. In other cases, the 
Spanish webinars proceeded but with a turnout of fewer than ten 
participants, who are typically employees. The Department multiplied 
the number of employees expected to view webinars (represented by their 
attorneys) by the hourly compensation rate, the time required to view a 
webinar, and the number of training webinars in the first year for both 
live and recorded webinars. The Department estimates a total and 
aggregate one-time cost of $1,835 for viewing live and recorded 
advocate/employee webinars.\11\
---------------------------------------------------------------------------

    \10\ On average, 12 individuals participate in live webinars for 
employees. The Department assumed that there would be a 5-percent 
increase in individuals following the implementation of the proposed 
rule. Thus, the Department estimated costs for one employee (i.e., 5 
percent of the 12 individuals) related to viewing the live webinars. 
On average, 567 individuals viewed the educational YouTube videos. 
The Department assumed the same proportion of employees-to-employers 
viewing the live webinars (0.268 = 12/44.7) would view the recorded 
webinars. This number would translate to 152 employees or employee 
advocates viewing the educational YouTube videos. Thus, the 
Department estimated costs for 8 employees (i.e., 5 percent of the 
152 individuals) related to viewing the recorded webinar.
    \11\ The Department estimated the cost of viewing live webinars 
by taking the product of the number of employee representatives 
(captured by the attorney occupational category) viewing the live 
webinar (1), the hourly compensation rate ($91.7631), the number of 
webinars (12), and the time required to view the webinar (1 hour). 
This resulted in a cost of $1,101. The Department then estimated the 
cost of viewing recorded webinars by taking the product of the 
number of employee representatives, assumed to be an attorney, 
viewing the recorded webinar (8), the hourly compensation rate 
($91.7631), the number of webinars (1), and the time required to 
view the webinar (1 hour). This resulted in a cost of $734. The 
total cost of viewing webinars was estimated by taking the sum of 
the cost of viewing live webinars and the cost of viewing recorded 
webinars, to obtain a total cost of $1,835.
---------------------------------------------------------------------------

    Accordingly, the total one-time cost to employers and employees of 
viewing live and recorded webinars would be $28,282.
d. Benefits of the Proposed Rule
    The Department was not able to quantify the benefits of the 
proposed rule due to data limitations, such as an inability to 
calculate the amount of time employers would save from the proposed 
rule. Several benefits to society would result, however, from the 
proposed rule, including the following:
    Helping employers understand the law more efficiently. The proposed 
regulatory changes would reduce the time and effort necessary for 
employers to understand their statutory obligations by incorporating 
well-established administrative decisions, the Department's long-
standing positions, and statutory amendments into the regulations.

[[Page 53974]]

    Increasing public access to government services. The proposed 
regulatory changes would streamline the charge-filing process for 
individuals alleging discrimination.
    Eliminating public confusion regarding two offices in the Federal 
Government with the same name. The proposed regulatory changes would 
reflect the change in the name of the office charged with enforcing 8 
U.S.C. 1324b from the Office of Special Counsel for Immigration-Related 
Unfair Employment Practices to the Immigrant and Employee Rights 
Section, thereby eliminating delays in processing submissions that 
currently occur due to confusion associated with having two Offices of 
Special Counsel in the Federal Government.\12\
---------------------------------------------------------------------------

    \12\ In addition to the Official of Special Counsel for 
Immigration Related Unfair Employment Practices established by 28 
CFR 0.53, Congress has established an Office of Special Counsel 
charged with protecting employees, former employees, and applicants 
for employment from prohibited personnel practices, among other 
functions. See 5 U.S.C. 1211-1212.
---------------------------------------------------------------------------

Regulatory Flexibility Act and Executive Order 13272 (Consideration of 
Small Entities)
    The Regulatory Flexibility Act (RFA), 5 U.S.C. 603, and Executive 
Order 13272 (Aug. 13, 2002), require agencies to prepare a regulatory 
flexibility analysis of the anticipated impact of a regulation on small 
entities. The RFA provides that the agency is not required to prepare 
such an analysis if an agency head certifies, along with a statement 
providing the factual basis for such certification, that the regulation 
is not expected to have a significant economic impact on a substantial 
number of small entities. 5 U.S.C. 605(b). Based on the following 
analysis, the Attorney General certifies that this rule will not have a 
significant economic impact on a substantial number of small entities.
    The Department's analysis focused on small businesses or nonprofits 
with 20 to 499 employees. The Department assumed that small businesses 
or nonprofits with fewer than 20 employees will not have a detailed 
written policy addressing compliance with 8 U.S.C. 1324b.
    The Department assumed that, in total, 56,685 entities will be 
affected by the proposed rule. Of those 56,685 affected entities, the 
Department estimated that 28,343 entities would be small employers.\13\ 
Dividing the affected population (28,343) by the total number of small 
businesses and non-profits (664,094), the Department estimates that 4.3 
percent of small entities would be impacted by the proposed rule.\14\
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    \13\ According to the SHRM Web site, approximately 50 percent of 
the organization's members work in organizations with fewer than 500 
employees. See SHRM, About the Society for Human Resource 
Management, https://www.shrm.org/about/pages/default.aspx. Taking 50 
percent of the total estimated number of members in SHRM and CGI 
(56,685) results in 28,343 small entities.
    \14\ The Department assumed that the total number of small 
businesses and non-profits is equal to the number of firms with 20 
to 499 employees. Because the U.S. Census Bureau did not identify 
the number of firms with 20 to 499 employees in 2013, the most 
recent year for which data is available, the Department calculated 
the estimated number of firms with 20 to 499 employees in that year 
by calculating the number of establishments with 20 to 499 employees 
in 2013 and dividing it by the ratio of small establishments to 
small firms in 2012. To perform that calculation, the Department 
first determined the estimated number of firms with 20 to 99 
employees in 2013 by (1) adding the number of establishments with 20 
to 49 employees in 2013 and the number of establishments with 50 to 
99 employees in 2013 (652,075 + 221,192 = 873,267); (2) dividing the 
number of establishments with 20 to 99 employees in 2012 by the 
number of firms with 20 to 99 employees in 2012 (687,272/494,170 = 
1.39076); and (3) dividing the first number by the second (873,267/
1.39076 = 627,906). The Department then determined the estimated 
number of firms with 100 to 499 employees in 2013 by (1) adding the 
number of establishments with 100 to 249 employees in 2013 and the 
number of establishments with 250 to 499 employees in 2013 (124,411 
+ 31,843 = 156,254); (2) dividing the number of establishments with 
100 to 499 employees in 2012 by the number of firms with 100 to 499 
employees in 2012 (360,207/83,423 = 4.3178); and (3) dividing the 
first number by the second (156,254/4.3178 = 36,188). Last, to 
determine the estimated number of firms with 20 to 499 employees in 
2013, the Department added the estimated number of firms with 20 to 
99 employees in 2013 and the estimated number of firms with 100 to 
499 employees in 2013 (627,906 + 36,188 = 664,094). See U.S. Census 
Bureau, 2013 County Business Patterns (NAICS), https://censtats.census.gov; U.S. Census Bureau, 2012 Statistics of U.S. 
Businesses, Number of Firms, Number of Establishments, Employment, 
Annual Payroll, and Estimated Receipts by Enterprise Employment Size 
for the United States and States, Totals: 2012; https://www.census.gov/econ/susb/historical_data.html.
---------------------------------------------------------------------------

    The Department estimated the costs of (a) familiarizing staff with 
the new requirements in the rule, (b) reviewing and revising their 
employment eligibility verification policy, and (c) viewing a training 
webinar. The analysis focused on the first year of rule implementation, 
when all costs of the proposed rule are incurred. The Department 
estimates that the total one-year cost per small employer is $314.\15\ 
The Department has determined that the yearly cost of $314 will not be 
a significant economic impact on any of the affected small entities. 
Therefore, the Department has certified that the proposed rule will not 
have a significant impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \15\ The Department estimated a cost of $314 per small entity by 
taking the sum of the cost per small entity of each of the proposed 
changes to the rule. This includes the following costs: 
Familiarization with the rule ($78), revising employment eligibility 
verification policies by making word replacements ($20), making 
additional changes beyond word replacements ($20), conducting a 
front-to-back review of the employment eligibility verification 
policies ($118), and viewing the training webinar ($78).
---------------------------------------------------------------------------

Paperwork Reduction Act
    These regulations contain no information collection requirements 
subject to review by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
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. 8 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 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.
Unfunded Mandates Reform Act of 1995
    For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1532, this proposed rule does not include any Federal mandate that may 
result in excess of $100 million in expenditures by State, local, and 
tribal governments in the aggregate or by the private sector.
Executive Order 13132 (Federalism)
    The agency has reviewed this proposed rule in accordance with 
Executive Order 13132 (Aug. 4, 1999), and has determined that it does 
not have ``federalism implications.'' This proposed rule would not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.
Executive Order 13175 (Consultation and Coordination With Indian Tribal 
Governments)
    This proposed rule does not have tribal implications under 
Executive Order 13175 (Nov. 6, 2000) that would require a tribal 
summary impact statement. The proposed rule would not have substantial 
direct effects on one or more Indian tribes, on the relationship 
between the Federal Government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
Government and Indian tribes.

[[Page 53975]]

Executive Order 13045 (Protection of Children)
    This proposed rule is not a covered regulatory action under 
Executive Order 13045 (Apr. 21, 1997). The proposed rule would have no 
environmental health risk or safety risk that may disproportionately 
affect children.
Executive Order 12630 (Constitutionally Protected Property Rights)
    This proposed rule does not have takings implications under 
Executive Order 12630 (Mar. 15, 1988). The proposed rule would not 
effect a taking or require dedications or exactions from owners of 
private property.
Executive Order 12988 (Civil Justice Reform Analysis)
    This proposed rule was drafted and reviewed in accordance with 
Executive Order 12988 (Feb. 5, 1996), and will not unduly burden the 
Federal court system. Complaints respecting unfair immigration-related 
employment practices are heard in the first instance by the Department 
of Justice, Executive Office for Immigration Review, Office of the 
Chief Administrative Hearing Officer.

List of Subjects

28 CFR Part 0

    Authority delegations (Government agencies), Government employees, 
Organization and functions (Government agencies), Privacy, Reporting 
and recordkeeping requirements, Whistleblowing.

28 CFR Part 44

    Administrative practice and procedure, Equal employment 
opportunity, Immigration.

    For the reasons stated in the preamble, the Attorney General 
proposes to revise 28 CFR parts 0 and 44 as follows:

PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE

0
1. The authority citation for part 0 continues to read as follows:

    Authority:  5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.

0
2. Section 0.53 is revised to read as follows:


Sec.  0.53  Immigrant and Employee Rights Section.

    (a) The Immigrant and Employee Rights Section shall be headed by a 
Special Counsel for Immigration-Related Unfair Employment Practices 
(``Special Counsel''). The Special Counsel shall be appointed by the 
President for a term of four years, by and with the advice and consent 
of the Senate, pursuant to section 274B of the Immigration and 
Nationality Act (INA), 8 U.S.C. 1324b. The Immigrant and Employee 
Rights Section shall be part of the Civil Rights Division of the 
Department of Justice, and the Special Counsel shall report directly to 
the Assistant Attorney General, Civil Rights Division.
    (b) In carrying out the Special Counsel's responsibilities under 
section 274B of the INA, the Special Counsel is authorized to:
    (1) Investigate charges of unfair immigration-related employment 
practices filed with the Immigrant and Employee Rights Section and, 
when appropriate, file complaints with respect to those practices 
before specially designated administrative law judges within the Office 
of the Chief Administrative Hearing Officer, Executive Office for 
Immigration Review, U.S. Department of Justice;
    (2) Intervene in proceedings involving complaints of unfair 
immigration-related employment practices that are brought directly 
before such administrative law judges by parties other than the Special 
Counsel;
    (3) Conduct, on the Special Counsel's own initiative, 
investigations of unfair immigration-related employment practices and, 
where appropriate, file complaints with respect to those practices 
before such administrative law judges;
    (4) Conduct, handle, and supervise litigation in U.S. District 
Courts for judicial enforcement of subpoenas or orders of 
administrative law judges regarding unfair immigration-related 
employment practices;
    (5) Initiate, conduct, and oversee activities relating to the 
dissemination of information to employers, employees, and the general 
public concerning unfair immigration-related employment practices;
    (6) Establish such regional offices as may be necessary, in 
accordance with regulations of the Attorney General;
    (7) Perform such other functions as the Assistant Attorney General, 
Civil Rights Division may direct; and
    (8) Delegate to any subordinate any of the authority, functions, or 
duties vested in the Special Counsel.
0
3. Revise part 44 to read as follows:

PART 44--UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES

Sec.
44.100 Purpose.
44.101 Definitions.
44.102 Computation of time.
44.200 Unfair immigration-related employment practices.
44.201 [Reserved].
44.202 Counting employees for jurisdictional purposes.
44.300 Filing a charge.
44.301 Receipt of charge.
44.302 Investigation.
44.303 Determination.
44.304 Special Counsel acting on own initiative.
44.305 Regional offices.

    Authority:  8 U.S.C. 1103(a)(1), (g), 1324b.


Sec.  44.100  Purpose.

    The purpose of this part is to implement section 274B of the 
Immigration and Nationality Act (8 U.S.C. 1324b), which prohibits 
certain unfair immigration-related employment practices.


Sec.  44.101  Definitions.

    For purposes of 8 U.S.C. 1324b and this part:
    (a) Charge means a written statement in any language that--
    (1) Is made under oath or affirmation;
    (2) Identifies the charging party's name, address, and telephone 
number;
    (3) Identifies the injured party's name, address, and telephone 
number, if the charging party is not the injured party;
    (4) Identifies the name and address of the person or other entity 
against whom the charge is being made;
    (5) Includes a statement sufficient to describe the circumstances, 
place, and date of an alleged unfair immigration-related employment 
practice;
    (6) Indicates whether the basis of the alleged unfair immigration-
related employment practice is discrimination based on national origin, 
citizenship status, or both; or involves intimidation or retaliation; 
or involves unfair documentary practices;
    (7) Indicates the citizenship status of the injured party;
    (8) Indicates, if known, the number of individuals employed on the 
date of the alleged unfair immigration-related employment practice by 
the person or other entity against whom the charge is being made;
    (9) Is signed by the charging party and, if the charging party is 
neither the injured party nor an officer of the Department of Homeland 
Security, indicates that the charging party has the authorization of 
the injured party to file the charge;
    (10) Indicates whether a charge based on the same set of facts has 
been filed with the Equal Employment Opportunity Commission, and if so, 
the specific office and contact person (if known); and
    (11) Authorizes the Special Counsel to reveal the identity of the 
injured or charging party when necessary to carry out the purposes of 
this part.

[[Page 53976]]

    (b) Charging party means--
    (1) An injured party who files a charge with the Special Counsel;
    (2) An individual or entity authorized by an injured party to file 
a charge with the Special Counsel that alleges that the injured party 
is adversely affected directly by an unfair immigration-related 
employment practice; or
    (3) An officer of the Department of Homeland Security who files a 
charge with the Special Counsel that alleges that an unfair 
immigration-related employment practice has occurred or is occurring.
    (c) Citizenship status means an individual's status as a U.S. 
citizen or national, or non-U.S. citizen, including the immigration 
status of a non-U.S. citizen.
    (d) Complaint means a written submission filed with the Office of 
the Chief Administrative Hearing Officer (OCAHO) under 28 CFR part 68 
by the Special Counsel or by a charging party, other than an officer of 
the Department of Homeland Security, alleging one or more unfair 
immigration-related employment practices under 8 U.S.C. 1324b.
    (e) Discriminate as that term is used in 8 U.S.C. 1324b means the 
act of intentionally treating an individual differently from other 
individuals, regardless of the explanation for the differential 
treatment, and regardless of whether such treatment is because of 
animus or hostility.
    (f) The phrase ``for purposes of satisfying the requirements of 
section 1324a(b),'' as that phrase is used in 8 U.S.C. 1324b(a)(6), 
means for the purpose of completing the employment eligibility 
verification form designated in 8 CFR 274a.2, or for the purpose of 
making any other efforts to verify an individual's employment 
eligibility, including the use of ``E-Verify'' or any other electronic 
employment eligibility verification program.
    (g) An act done ``for the purpose or with the intent of 
discriminating against an individual in violation of paragraph (1),'' 
as that phrase is used in 8 U.S.C. 1324b(a)(6), means an act of 
intentionally treating an individual differently based on national 
origin or citizenship status in violation of 8 U.S.C. 1324b(a)(1), 
regardless of the explanation for the differential treatment, and 
regardless of whether such treatment is because of animus or hostility.
    (h) Hiring means all conduct and acts during the entire 
recruitment, selection, and onboarding process undertaken to make an 
individual an employee.
    (i) Injured party means an individual who claims to be adversely 
affected directly by an unfair immigration-related employment practice.
    (j) The phrase ``more or different documents than are required 
under such section,'' as that phrase is used in 8 U.S.C. 1324b(a)(6), 
includes any limitation on an individual's choice of acceptable 
documentation to present to satisfy the requirements of 8 U.S.C. 
1324a(b).
    (k) Protected individual means an individual who--
    (1) Is a citizen or national of the United States;
    (2) Is an alien who is lawfully admitted for permanent residence, 
other than an alien who--
    (i) Fails to apply for naturalization within six months of the date 
the alien first becomes eligible (by virtue of period of lawful 
permanent residence) to apply for naturalization, or, if later, within 
six months after November 6, 1986; or
    (ii) Has applied on a timely basis, but has not been naturalized as 
a citizen within two years after the date of the application, unless 
the alien can establish that he or she is actively pursuing 
naturalization, except that time consumed in the Department of Homeland 
Security's processing of the application shall not be counted toward 
the two-year period;
    (3) Is an alien lawfully admitted for temporary residence under 8 
U.S.C. 1160(a) or 8 U.S.C. 1255a(a)(1);
    (4) Is admitted as a refugee under 8 U.S.C. 1157; or
    (5) Is granted asylum under 8 U.S.C. 1158.
    (l) Recruitment or referral for a fee has the meaning given the 
terms ``recruit for a fee'' and ``refer for a fee,'' respectively, in 8 
CFR 274a.1, and includes all conduct and acts during the entire 
recruitment or referral process.
    (m) Respondent means a person or other entity who is under 
investigation by the Special Counsel, as identified in the written 
notice required by Sec.  44.301(a) or Sec.  44.304(a).
    (n) Special Counsel means the Special Counsel for Immigration-
Related Unfair Employment Practices appointed by the President under 8 
U.S.C. 1324b, or a duly authorized designee.


Sec.  44.102  Computation of time.

    When a time period specified in this part ends on a day when the 
Federal Government in Washington, DC is closed (such as on weekends and 
Federal holidays, or due to a closure for all or part of a business 
day), the time period shall be extended until the next full day that 
the Federal Government in Washington, DC is open.


Sec.  44.200  Unfair immigration-related employment practices.

    (a)(1) General. It is an unfair immigration-related employment 
practice under 8 U.S.C. 1324b(a)(1) for a person or other entity to 
intentionally discriminate or to engage in a pattern or practice of 
intentional discrimination against any individual (other than an 
unauthorized alien) with respect to the hiring, or recruitment or 
referral for a fee, of the individual for employment or the discharging 
of the individual from employment--
    (i) Because of such individual's national origin; or
    (ii) In the case of a protected individual, as defined in Sec.  
44.101(k), because of such individual's citizenship status.
    (2) Intimidation or retaliation. It is an unfair immigration-
related employment practice under 8 U.S.C. 1324b(a)(5) for a person or 
other entity to intimidate, threaten, coerce, or retaliate against any 
individual for the purpose of interfering with any right or privilege 
secured under 8 U.S.C. 1324b or because the individual intends to file 
or has filed a charge or a complaint, testified, assisted, or 
participated in any manner in an investigation, proceeding, or hearing 
under that section.
    (3) Unfair documentary practices. It is an unfair immigration-
related employment practice under 8 U.S.C. 1324b(a)(6) for--
    (i) A person or other entity, for purposes of satisfying the 
requirements of 8 U.S.C. 1324a(b), either--
    (A) To request more or different documents than are required under 
Sec.  1324a(b); or
    (B) To refuse to honor documents tendered that on their face 
reasonably appear to be genuine and to relate to the individual; and
    (ii) To make such request or refusal for the purpose or with the 
intent of discriminating against any individual in violation of 
paragraph (1), regardless of whether such documentary practice is a 
condition of employment or causes economic harm to the individual.
    (b) Exceptions. (1) Paragraph (a)(1) of this section shall not 
apply to--
    (i) A person or other entity that employs three or fewer employees;
    (ii) Discrimination because of an individual's national origin by a 
person or other entity if such discrimination is covered by 42 U.S.C. 
2000e-2; or
    (iii) Discrimination because of citizenship status which--
    (A) Is otherwise required in order to comply with law, regulation, 
or Executive order; or
    (B) Is required by Federal, State, or local government contract; or

[[Page 53977]]

    (C) The Attorney General determines to be essential for an employer 
to do business with an agency or department of the Federal, State, or 
local government.
    (2) Notwithstanding any other provision of this part, it is not an 
unfair immigration-related employment practice for a person or other 
entity to prefer to hire an individual, or to recruit or refer for a 
fee an individual, who is a citizen or national of the United States 
over another individual who is an alien if the two individuals are 
equally qualified.


Sec.  44.201   [Reserved].


Sec.  44.202  Counting employees for jurisdictional purposes.

    The Special Counsel will calculate the number of employees referred 
to in Sec.  44.200(b)(1)(i) by counting all part-time and full-time 
employees employed on the date that the alleged discrimination 
occurred. The Special Counsel will use the 20 calendar week requirement 
contained in Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
2000e(b), for purposes of determining whether the exception of Sec.  
44.200(b)(1)(ii) applies, and will refer to the Equal Employment 
Opportunity Commission charges of national origin discrimination that 
the Special Counsel determines are covered by 42 U.S.C. 2000e-2.


Sec.  44.300  Filing a charge.

    (a) Who may file. Charges may be filed by:
    (1) Any injured party;
    (2) Any individual or entity authorized by an injured party to file 
a charge with the Special Counsel alleging that the injured party is 
adversely affected directly by an unfair immigration-related employment 
practice; or
    (3) Any officer of the Department of Homeland Security who alleges 
that an unfair immigration-related employment practice has occurred or 
is occurring.
    (b) Charges shall be filed within 180 days of the alleged 
occurrence of an unfair immigration-related employment practice. A 
charge is deemed to be filed on the date it is postmarked or the date 
on which the charging party otherwise delivers or transmits the charge 
to the Special Counsel.
    (c) Charges may be sent by:
    (1) U.S. mail;
    (2) Courier service;
    (3) Electronic or online submission; or
    (4) Facsimile.
    (d) No charge may be filed respecting an unfair immigration-related 
employment practice described in Sec.  44.200(a)(1)(i) if a charge with 
respect to that practice based on the same set of facts has been filed 
with the Equal Employment Opportunity Commission under title VII of the 
Civil Rights Act of 1964, unless the charge is dismissed as being 
outside the scope of such title. No charge respecting an employment 
practice may be filed with the Equal Employment Opportunity Commission 
under such title if a charge with respect to such practice based on the 
same set of facts has been filed under this section, unless the charge 
is dismissed as being outside the scope of this part.


Sec.  44.301  Receipt of charge.

    (a) Within 10 days of receipt of a charge, the Special Counsel 
shall notify the charging party and respondent by certified mail, in 
accordance with paragraphs (b) and (c) of this section, of the Special 
Counsel's receipt of the charge.
    (b) The notice to the charging party shall specify the date on 
which the charge was received; state that the charging party, other 
than an officer of the Department of Homeland Security, may file a 
complaint before an administrative law judge if the Special Counsel 
does not do so within 120 days of receipt of the charge; and state that 
the charging party will have 90 days from the receipt of the letter of 
determination issued pursuant to Sec.  44.303(b) by which to file such 
a complaint.
    (c) The notice to the respondent shall include the date, place, and 
circumstances of the alleged unfair immigration-related employment 
practice.
    (d)(1) If a charging party's submission is found to be inadequate 
to constitute a complete charge as defined in Sec.  44.101(a), the 
Special Counsel shall notify the charging party that the charge is 
incomplete and specify what additional information is needed.
    (2) An incomplete charge that is later deemed to be complete under 
this paragraph is deemed filed on the date the initial but inadequate 
submission is postmarked or otherwise delivered or transmitted to the 
Special Counsel, provided any additional information requested by the 
Special Counsel pursuant to this paragraph is postmarked or otherwise 
provided, delivered or transmitted to the Special Counsel within 180 
days of the alleged occurrence of an unfair immigration-related 
employment practice or within 45 days of the date on which the charging 
party received the Special Counsel's request for additional 
information, whichever is later.
    (3) Once the Special Counsel determines adequate information has 
been submitted to constitute a complete charge, the Special Counsel 
shall issue the notices required by paragraphs (b) and (c) of this 
section within 10 days.
    (e) In the Special Counsel's discretion, the Special Counsel may 
deem a submission to be a complete charge even though it is inadequate 
to constitute a charge as defined in Sec.  44.101(a). The Special 
Counsel may then obtain the additional information specified in Sec.  
44.101(a) in the course of investigating the charge.
    (f) A charge or an inadequate submission referred to the Special 
Counsel by a federal, state, or local government agency appointed as an 
agent for accepting charges on behalf of the Special Counsel is deemed 
filed on the date the charge or inadequate submission was postmarked to 
or otherwise delivered or transmitted to that agency. Upon receipt of 
the referred charge or inadequate submission, the Special Counsel shall 
follow the applicable notification procedures for the receipt of a 
charge or inadequate submission set forth in this section.
    (g) The Special Counsel shall dismiss a charge or inadequate 
submission that is filed more than 180 days after the alleged 
occurrence of an unfair immigration-related employment practice, unless 
the Special Counsel determines that the principles of waiver, estoppel, 
or equitable tolling apply.


Sec.  44.302  Investigation.

    (a) The Special Counsel may seek information, request documents and 
answers to written interrogatories, inspect premises, and solicit 
testimony as the Special Counsel believes is necessary to ascertain 
compliance with this part.
    (b) The Special Counsel may require any person or other entity to 
present Employment Eligibility Verification Forms (``Forms I-9'') for 
inspection.
    (c) The Special Counsel shall have reasonable access to examine the 
evidence of any person or other entity being investigated. The 
respondent shall permit access by the Special Counsel during normal 
business hours to such books, records, accounts, papers, electronic and 
digital documents, databases, systems of records, witnesses, premises, 
and other sources of information the Special Counsel may deem pertinent 
to ascertain compliance with this part.
    (d) A respondent, upon receiving notice by the Special Counsel that 
it is under investigation, shall preserve all evidence, information, 
and documents potentially relevant to any alleged unfair immigration-
related employment practices, and shall suspend routine or

[[Page 53978]]

automatic deletion of all such evidence, information, and documents.


Sec.  44.303  Determination.

    (a) Within 120 days of the receipt of a charge, the Special Counsel 
shall undertake an investigation of the charge and determine whether to 
file a complaint with respect to the charge.
    (b) If the Special Counsel determines not to file a complaint with 
respect to such charge by the end of the 120-day period, or decides to 
continue the investigation of the charge beyond the 120-day period, the 
Special Counsel shall, by the end of the 120-day period, issue letters 
to the charging party and respondent by certified mail notifying both 
parties of the Special Counsel's determination.
    (c) When a charging party receives a letter of determination issued 
pursuant to paragraph (b) of this section, the charging party, other 
than an officer of the Department of Homeland Security, may file a 
complaint directly before an administrative law judge in the Office of 
the Chief Administrative Hearing Officer (OCAHO) within 90 days after 
his or her receipt of the Special Counsel's letter of determination. 
The charging party's complaint must be filed with OCAHO as provided in 
28 CFR part 68.
    (d) The Special Counsel's failure to file a complaint with respect 
to such charge with OCAHO within the 120-day period shall not affect 
the right of the Special Counsel to continue to investigate the charge 
or later to bring a complaint before OCAHO.
    (e) The Special Counsel may seek to intervene at any time in any 
proceeding brought by a charging party before OCAHO.


Sec.  44.304  Special Counsel acting on own initiative.

    (a) The Special Counsel may, on the Special Counsel's own 
initiative, conduct investigations respecting unfair immigration-
related employment practices when there is reason to believe that a 
person or other entity has engaged or is engaging in such practices, 
and shall notify a respondent by certified mail of the commencement of 
the investigation.
    (b) The Special Counsel may file a complaint with OCAHO when there 
is reasonable cause to believe that an unfair immigration-related 
employment practice has occurred no more than 180 days prior to the 
date on which the Special Counsel opened an investigation of that 
practice.


Sec.  44.305  Regional offices.

    The Special Counsel, in accordance with regulations of the Attorney 
General, shall establish such regional offices as may be necessary to 
carry out the Special Counsel's duties.

    Dated: August 4, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016-18957 Filed 8-12-16; 8:45 am]
 BILLING CODE 4410-13-P