Office of the Chief Administrative Hearing Officer, Review Procedures, 70586-70591 [2023-22206]

Agencies

• Department of Justice

[Federal Register Volume 88, Number 196 (Thursday, October 12, 2023)]
[Rules and Regulations]
[Pages 70586-70591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22206]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

28 CFR Part 68

[EOIR Docket No. 022-0010; AG Order No. 5812-2023]
RIN 1125-AB28


Office of the Chief Administrative Hearing Officer, Review 
Procedures

AGENCY: Executive Office for Immigration Review, Department of Justice.

ACTION: Interim final rule; request for comment.

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

SUMMARY: The Department of Justice (``Department'') is revising its 
regulations to provide that the Attorney General may, in his 
discretion, review decisions and orders of Administrative Law Judges 
(``ALJs'') in the Office of the Chief Administrative Hearing Officer 
(``OCAHO'') in cases arising under section 274B of the Immigration and 
Nationality Act (``INA'' or ``the Act''). This revision will ensure 
that the adjudicatory process for section 274B cases is consistent with 
the Supreme Court's decision in the 2021 case United States v. Arthrex, 
Inc., and will align that process with similar processes for 
discretionary review of decisions by ALJs in OCAHO and throughout the 
Executive Branch. It will not limit or alter parties' right to seek 
judicial review of adverse decisions.

DATES: 
    Effective date: This rule is effective October 12, 2023.
    Comments: Electronic comments must be submitted and written 
comments must be postmarked or otherwise indicate a shipping date on or 
before December 11, 2023.

ADDRESSES: If you wish to provide comment regarding this rulemaking, 
you must submit comments, identified by the agency name and reference 
RIN 1125-AB28 or EOIR Docket No. 022-0010, by one of the two methods 
below.
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the website's instructions for submitting comments. The 
electronic Federal Docket Management System (FDMS) at https://www.regulations.gov will accept electronic comments until 11:59 p.m. 
Eastern Time on December 11, 2023.
     Mail: Paper comments that duplicate an electronic 
submission are unnecessary. If you wish to submit a paper comment in 
lieu of electronic submission, please direct the mail/shipment to: 
Raechel Horowitz, Chief, Immigration Law Division, Office of Policy, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
1800, Falls Church, VA 22041. To ensure proper handling, please 
reference the agency name and RIN 1125-AB28 or EOIR Docket No. 022-0010 
on your correspondence. Mailed items must be postmarked or otherwise 
indicate a shipping date on or before the submission deadline.

FOR FURTHER INFORMATION CONTACT: Raechel Horowitz, Chief, Immigration 
Law Division, Office of Policy, Executive Office for Immigration 
Review, 5107 Leesburg Pike, Suite 1800, Falls Church, VA 22041, 
telephone (703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
interim final rule (``IFR'') via one of the methods and by the deadline 
stated above. The Department also invites comments that relate to the 
economic, environmental, or federalism effects that might result from 
this IFR. Comments that will provide the most assistance to the

[[Page 70587]]

Department in developing these procedures will reference a specific 
portion of the IFR; explain the reason for any recommended change; and 
include data, information, or authority that supports such recommended 
change.
    Please note that all comments received are considered part of the 
public record and made available for public inspection at https://www.regulations.gov. Such information includes personally identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you want to submit personally identifying information (such as 
your name, address, etc.) as part of your comment, but do not want it 
to be posted online, you must include the phrase ``PERSONALLY 
IDENTIFYING INFORMATION'' 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.
    Personally identifying information located as set forth above will 
be placed in the agency's public docket file, but not posted online. 
Confidential business information identified and located as set forth 
above will not be placed in the public docket file. The Department may 
withhold from public viewing information provided in comments that it 
determines may impact the privacy of an individual or is offensive. For 
additional information, please read the Privacy Act notice that is 
available via the link in the footer of https://www.regulations.gov. To 
inspect the agency's public docket file in person, you must make an 
appointment with the agency. Please see the FOR FURTHER INFORMATION 
CONTACT section of this document for agency contact information.

II. Background

A. Office of the Chief Administrative Hearing Officer (``OCAHO''): 
Organization and Authority

    OCAHO is a component of the Department's Executive Office for 
Immigration Review (``EOIR''). See 8 CFR 1003.0(a). Administrative Law 
Judges (``ALJs'') in OCAHO have jurisdiction to decide cases arising 
under sections 274A, 274B, and 274C of the Immigration and Nationality 
Act (``INA''), 8 U.S.C. 1324a, 1324b, and 1324c, and the procedures for 
such cases are set forth at 28 CFR part 68. Under these statutes and 
regulations, OCAHO ALJs conduct hearings, administer oaths, compel the 
production of documents and appearance of witnesses, issue subpoenas, 
and issue decisions and orders. 28 CFR 68.28(a); see also INA 274A(e), 
274B(f), (g), and 274C(d), 8 U.S.C. 1324a(e), 1324b(f), (g), 1324c(d); 
accord 5 U.S.C. 556(c) (outlining general authorities of administrative 
agency ALJs). OCAHO is headed by a Chief Administrative Hearing Officer 
(``CAHO''), who exercises administrative supervision over the ALJs and 
other staff assigned to OCAHO and reviews certain decisions and orders 
issued by the ALJs. See generally 28 CFR 68.2 (delineating the 
authorities of the CAHO).
    The INA provides instruction regarding the finality of and 
available appellate procedures for OCAHO ALJ orders under sections 
274A, 274B, and 274C of the Act, 8 U.S.C. 1324a, 1324b, and 1324c.\1\ 
Specifically, in cases arising under sections 274A and 274C of the Act, 
8 U.S.C. 1324a and 1324c, the Act provides that final orders issued by 
OCAHO ALJs are subject to administrative appellate review by both ``an 
official delegated by regulation to exercise review authority'' and the 
Attorney General. See INA 274A(e)(7), 274C(d)(4), 8 U.S.C. 1324a(e)(7), 
1324c(d)(4).\2\ OCAHO's regulations in turn provide specific procedures 
for this review. See 28 CFR 68.54 through 68.55. However, in cases 
arising under section 274B of the Act, 8 U.S.C. 1324b, the statute 
provides that the ALJ's order ``shall be final'' unless appealed to the 
appropriate United States court of appeals. INA 274B(g)(1), (i), 8 
U.S.C. 1324b(g)(1), (i). OCAHO's current regulations provide that the 
ALJ's final order in a case under section 274B of the Act, 8 U.S.C. 
1324b, is the final agency order and is not subject to further review 
within the Department. See 28 CFR 68.52(g). Consistent with that 
regulation, OCAHO has previously concluded that ALJ orders under 
section 274B of the Act, 8 U.S.C. 1324b, are not subject to further 
administrative review, including by the Attorney General. See A.S. v. 
Amazon Web Servs. Inc., 14 OCAHO no. 1381h, 2 (2021); Wong-Opasi v. 
Sundquist, 8 OCAHO no. 1051, 799, 799 (2000).
---------------------------------------------------------------------------

    \1\ Section 274A, 8 U.S.C. 1324a, relates to the unlawful 
employment of noncitizens, including making unlawful the employment 
of unauthorized noncitizens. Section 274B, 8 U.S.C. 1324b, sets 
forth requirements and procedures for investigating and conducting 
hearings related to unfair immigration-related employment practices, 
specifically discrimination based on national origin or citizenship 
status. Section 274C, 8 U.S.C. 1324c, establishes the penalties for 
document fraud when seeking immigration-related benefits or 
satisfying certain requirements of the INA.
    \2\ This appellate review authority has been delegated by 
regulation to the CAHO. See 28 CFR 0.118, 68.2, 68.54.
---------------------------------------------------------------------------

B. Concerns With Current Regulations Interpreting Section 274B of the 
Act, 8 U.S.C. 1324b

    The Supreme Court's decision in United States v. Arthrex, Inc., 141 
S. Ct. 1970 (2021), has spurred a reevaluation of OCAHO's current 
regulatory framework that permits OCAHO ALJs to issue final orders not 
subject to further agency review in cases arising out of alleged 
violations of section 274B of the Act, 8 U.S.C. 1324b.
    The Appointments Clause of the Constitution sets out the manner in 
which ``Officers of the United States'' who exercise significant 
governmental authority must be appointed. U.S. Const. art. II, sec. 2, 
cl. 2; Buckley v. Valeo, 424 U.S. 1, 126 & n.162, 141 (1976). Principal 
officers must be appointed by the President, by and with the advice and 
consent of the Senate, but inferior officers may be appointed by the 
President alone, the head of an executive department, or a court of 
law. U.S. Const. art. II, sec. 2, cl. 2; see also Buckley, 424 U.S. at 
132. OCAHO ALJs are appointed by the Attorney General, see 28 U.S.C. 
509, 510; 5 U.S.C. 3105, consistent with one of the methods permitted 
by the Constitution for the appointment of inferior officers, see 
Buckley, 424 U.S. at 132.
    In Arthrex, the Court considered an adjudicatory framework where a 
statute expressly precluded a principal officer from directly reviewing 
the decisions of certain inferior officers--administrative patent 
judges (``APJs'')--and those APJs further had restrictions on their 
removal from office. See Arthrex, 141 S. Ct. at 1977-78, 1981-82, 1985. 
The Court explained that ``[a]n inferior officer must be `directed and 
supervised at some level by others who were appointed by Presidential 
nomination with the advice and consent of the Senate.' '' Id. at 1980 
(quoting Edmond v. United States, 520 U.S. 651, 663 (1997)). The Court 
further explained that such unreviewable adjudicatory authority would 
conflict with the role of inferior officers, which inherently involves 
being subject to the direction

[[Page 70588]]

and supervision of others, either through higher-level review of the 
adjudicators' decisions or the ability to remove adjudicators from 
their positions at will. See generally id. at 1981-82. To remedy the 
constitutional concerns, the Court held that the statutory provision 
limiting or foreclosing review of APJ final decisions was unenforceable 
insofar as it prevented the Director of the United States Patent and 
Trademark Office (``USPTO'')--who is appointed by the President with 
the advice and consent of the Senate and therefore is ``a politically 
accountable officer'' as described in Arthrex, id. at 1982--from 
reviewing APJ decisions. See id. at 1986-87.
    The Department has examined its current regulation governing cases 
arising under section 274B of the Act, 8 U.S.C. 1324b, in light of the 
principles outlined in Arthrex. The statutory framework under section 
274B of the Act, 8 U.S.C. 1324b, does not expressly state that a 
principal officer may review an OCAHO ALJ's decision in cases arising 
under that provision and describes an OCAHO ALJ's order as final unless 
appealed to a federal circuit court, INA 274B(g)(1), 8 U.S.C. 
1324(g)(1). Unlike the statutory framework in Arthrex, however, there 
is no statutory provision in section 274B of the Act, 8 U.S.C. 1324b, 
expressly limiting further review by a single principal officer. 
Compare 35 U.S.C. 6(c) (providing that decisions ``shall be heard by at 
least 3 members of the Patent Trial and Appeal Board'' and that 
``[o]nly the Patent Trial and Appeal Board may grant rehearings'').
    The Department's current regulation provides that, in cases arising 
under section 274B of the Act, 8 U.S.C. 1324b, an ALJ's decision 
``becomes the final agency order on the date the order is issued'' and 
does not expressly provide for administrative review. 28 CFR 68.52(g). 
This regulation could be read to prevent further review by the Attorney 
General, which would make it comparable to the statutory scheme in 
Arthrex that prevented further review by the USPTO Director. See id.; 
cf. Amazon Web Servs., 14 OCAHO no. 1381h at 2 n.4.

C. Interpreting INA 274B, 8 U.S.C. 1324b, in Light of Arthrex

    Following the Supreme Court's decision in Arthrex, the Department 
has considered whether the current regulation setting out procedures 
for OCAHO ALJ decisions under section 274B of the Act, 8 U.S.C. 1324b, 
is the best implementation of the statute. The Department concludes 
that another reading of section 274B of the Act, 8 U.S.C. 1324b--one 
that expressly accounts for review of ALJ decisions by the Attorney 
General--is the better understanding of the law. This reading is also 
more consistent with the Administrative Procedure Act's (APA) general 
framework, which acknowledges a default rule of agency review of ALJ 
decisions. Specifically, the APA provides that after an ALJ makes an 
initial decision, ``that decision then becomes the final decision of 
the agency without further proceedings unless there is an appeal to, or 
review on motion of, the agency within time provided by rule.'' 5 
U.S.C. 557(b) (emphasis added). This default rule of review supports 
the conclusion that the phrase ``shall be final'' in section 274B(g)(1) 
of the Act, 8 U.S.C. 1324b(g)(1), is best understood to mean that the 
ALJ's initial decision under section 274B of the Act, 8 U.S.C. 1324b, 
is the final agency action for purposes of seeking judicial review 
unless the decision is further reviewed by the Attorney General. This 
conclusion is further bolstered when read in conjunction with general 
principles of administrative law, the well-settled meaning of the word 
``final'' in this context, the Executive Branch's practice in related 
areas, and the constitutional requirements of the Appointments Clause, 
each discussed in further detail below.
    Specifically, this understanding of section 274B of the Act, 8 
U.S.C. 1324b, is most consonant with general administrative law 
principles. As the Office of Legal Counsel has previously explained, 
``[u]nder the APA, `final agency action' is generally understood to 
mean that action which is necessary and sufficient for judicial 
review.'' Secretary of Education Review of Administrative Law Judge 
Decisions, 15 Op. O.L.C., 8, 10 (1991) (``Secretary of Education''). An 
``extensive body of precedent'' establishes that an ``agency's decision 
need not be its last word on a subject to be considered `final agency 
action,' '' and that an ``agency action can be `final' for purposes of 
the APA, and thus for purposes of judicial review, even though it is 
subject to reconsideration on appeal to a higher authority within the 
agency.'' Id. at 10-11. And where ``Congress employs a term of art with 
a well-established meaning, it is generally presumed in the absence of 
evidence to the contrary to have intended that meaning to apply.'' Id. 
at 11. Section 274B of the Act, 8 U.S.C. 1324b, is thus ``most 
naturally read'' to indicate that an ALJ's decision shall be considered 
final agency action for purposes of sufficiency for judicial review 
under 5 U.S.C. 704, not as ``preclud[ing] further review of an ALJ's 
decision'' by the Attorney General. Id.
    Indeed, throughout the Executive Branch, including in other 
Department components that utilize ALJs, ALJs render ``initial 
decisions,'' sometimes called ``recommended decisions,'' in certain 
cases that the agency can review further or, if there is no appeal or 
referral, become final agency decisions. See, e.g., 21 CFR 1316.64 
through 1316.67 (providing a process through which the Administrator of 
the Drug Enforcement Administration reviews recommended decisions of 
ALJs before they are published as final decisions); 27 CFR 555.79 
(providing a process for the Director of the Bureau of Alcohol, 
Tobacco, Firearms, and Explosives to review initial decisions of ALJs 
in license and permit proceedings, after which the initial decision 
becomes final unless modified or reversed by the Director, but also 
noting that initial decisions may be appealed directly to the federal 
court of appeals); see also 28 CFR 68.52(g) (providing that ALJ orders 
in cases under sections 274A and 274C of the Act, 8 U.S.C. 1324a and 
1324c, become final agency orders 60 days after issuance unless the 
orders are modified or vacated by the CAHO or referred to the Attorney 
General for review). Thus, a structure in which ALJ decisions are not 
subject to further review within the Executive Branch is an anomaly 
rather than the standard.
    In addition to the above conclusion that this reading of the term 
``final agency action'' is most consonant with general administrative 
law practices, the analysis in Secretary of Education provides further 
support for this interpretation as a mechanism for avoiding potential 
constitutional issues that would arise with a contrary reading of 
section 274B(g)(1) of the Act, 8 U.S.C. 1324b(g)(1). That opinion 
explained that a statutory provision providing that an ALJ's decision 
``shall be considered to be a final agency action'' was best read to 
mean that the decision could be a final agency action for purposes of 
seeking judicial review, not that the Secretary of Education was 
foreclosed from exercising the agency head's customary role of 
reviewing the decisions of subordinates. 15 Op. O.L.C. at 12-13. The 
opinion noted that ``[i]f the Act were construed to forbid the 
Secretary's review of an ALJ decision, there would be presented serious 
constitutional questions relating to the ALJ's appointments and the 
lack of presidential control over their activities.'' Id. at 13.

[[Page 70589]]

    Relatedly, ensuring that the Attorney General has the opportunity 
to review ALJ decisions is informed by the remedy that the Supreme 
Court prescribed in Arthrex. There, the Court held that pursuant to 
severability principles, ``the structure of the PTO and the governing 
constitutional principles chart a clear course: Decisions by APJs must 
be subject to review by the Director,'' a politically accountable 
officer. Arthrex, 141 S. Ct. at 1986. Here too, allowing the Attorney 
General to ``review[ ] the decisions of the [ALJs] on his own,'' id. at 
1987, would be most consistent with the Appointments Clause.
    Given the general principles of administrative law, the well-
settled meaning of the word ``final'' in this context, the fact that 
head-of-agency review of ALJ decisions is the APA norm, and possible 
constitutional concerns with granting ALJs final decision-making 
authority not subject to further agency review, the Department declines 
to read the statute as precluding Attorney General review.

D. Purpose of the IFR

    Consequently, the Department concludes that section 274B(g)(1) of 
the Act, 8 U.S.C. 1324b(g)(1), should not be read to preclude all 
further administrative review of an ALJ's decision. The typical 
understanding of the word ``final'' in Administrative Procedure Act 
cases, the fact that head-of-agency review of ALJ decisions is the APA 
norm, and possible constitutional avoidance concerns make this IFR's 
new provisions implementing procedures related to section 274B of the 
Act, 8 U.S.C. 1324b, including section 274B(g)(1) of the Act, 8 U.S.C. 
1324b(g)(1), most appropriate to ensure a constitutionally sound review 
procedure for claims arising under this section.\3\ Further, OCAHO 
cases arising under section 274A and 274C of the Act, 8 U.S.C. 1324a 
and 1324c, are already subject to possible review by the Attorney 
General. See 28 CFR 68.55.
---------------------------------------------------------------------------

    \3\ Additional authority for this IFR is found in 28 U.S.C. 509, 
which provides that ``[a]ll functions of other officers of the 
Department of Justice and all functions of agencies and employees of 
the Department of Justice are vested in the Attorney General,'' 
except for functions ``vested by [the APA] in administrative law 
judges'' and other exceptions not relevant here. The exclusion of 
ALJ functions in 28 U.S.C. 509 does not affect the Attorney 
General's authority to promulgate an appeal or referral procedure 
for cases heard by ALJs and review such cases pursuant to that 
regulation because when reviewing an ALJ decision, the Attorney 
General would be exercising a function generally vested in agency 
heads under the APA, 5 U.S.C. 557(b), and not the functions of ALJs 
themselves.
---------------------------------------------------------------------------

    Accordingly, to effectuate the Department's new interpretation and 
avoid potential constitutional issues raised by the Arthrex decision, 
the Department is amending relevant parts of 28 CFR part 68 to provide 
the opportunity for Attorney General review of ALJ decisions in cases 
arising under section 274B of the Act, 8 U.S.C. 1324b, consistent with 
longstanding existing practices used in cases under sections 274A and 
274C of the Act, 8 U.S.C. 1324a and 1324c.

III. Summary of Changes

    The Department is amending OCAHO's rules of practice and procedure 
to implement a review procedure for ALJ decisions in cases arising 
under section 274B of the Act, 8 U.S.C. 1324b, that aligns with the 
agency review procedures set forth in the APA, is consistent with 
general administrative law principles, and is constitutionally sound. 
These changes will provide the Attorney General with an opportunity to 
review all OCAHO ALJ final orders consistent with the Attorney 
General's position as the head of the Department with responsibility 
for oversight of inferior officers at the Department. The decision 
whether to review an OCAHO ALJ decision would be within the sole 
discretion of the Attorney General, and no party will have the right to 
seek or request such review.
    First, consistent with the overall intent of this IFR to ensure the 
opportunity for Attorney General review of ALJ decisions in cases under 
section 274B of the Act, 8 U.S.C. 1324b, this IFR amends the 
definitions of ``entry'' and ``final agency order'' in 28 CFR 68.2. 
With respect to the definition of ``entry,'' this IFR removes the 
separate definition of ``entry'' for cases arising under section 
274B(i)(1) of the Act, 8 U.S.C. 1324b(i)(1). See 28 CFR 68.2 (2023) 
(defining the word ``entry'' to mean ``the date the Administrative Law 
Judge, Chief Administrative Hearing Officer, or the Attorney General 
signs the order'' and, as used in section 274B(i)(1) of the INA, to 
mean ``the date the Administrative Law Judge signs the order[.]''). 
Thus, pursuant to this IFR, the regulation provides a singular 
definition for ``entry'' that applies to cases arising under sections 
274A, 274B, and 274C of the Act, 8 U.S.C. 1324a, 1324b, and 1324c. 
Regarding the definition of ``final agency order,'' this IFR adds a 
reference to section 274B of the Act, 8 U.S.C. 1324b, in addition to 
the existing references to sections 274A and 274C of the Act, 8 U.S.C. 
1324a and 1324c, to the first sentence of the definition and removes a 
separate definition of the term ``final agency order'' exclusive to 
cases arising under section 274B of the Act, 8 U.S.C. 1324b. See 28 CFR 
68.2 (2023) (stating that ``[i]n cases arising under section 274B of 
the INA, an Administrative Law Judge's final order is also the final 
agency order''). Further, this IFR makes conforming amendments in 
paragraph (g) of 28 CFR 68.52 regarding what constitutes the final 
agency order in cases under section 274B of the Act, 8 U.S.C. 1324b. 
Specifically, the IFR adds that in cases arising under 274B of the Act, 
8 U.S.C. 1324b, the Administrative Law Judge's order becomes the final 
agency order sixty (60) days after the date of entry of the 
Administrative Law Judge's order, unless the order is referred to the 
Attorney General pursuant to 28 CFR 68.55.
    Second, the IFR amends 28 CFR 68.55 to specify the procedures for 
Attorney General review of ALJ decisions and orders in cases arising 
under section 274B of the Act, 8 U.S.C. 1324b, including by providing a 
time frame for referral of such cases.
    Third, the IFR amends 28 CFR 68.57 regarding the procedures for 
seeking judicial review of a final agency order in cases arising under 
section 274B of the Act, 8 U.S.C. 1324b, to include final agency orders 
issued under 28 CFR 68.55(d). See 28 CFR 68.55(d) (2023) (describing 
the final agency order in cases referred to the Attorney General for 
review). The IFR also makes non-substantive edits to 28 CFR 68.56 to 
include cross-references to relevant regulatory provisions and parallel 
the structure of revised 28 CFR 68.57.
    Finally, the IFR also revises the authority citation for 28 CFR 
part 68 to include citations to 28 U.S.C. 509 (``Functions of the 
Attorney General''), 28 U.S.C. 510 (``Delegation of Authority''), and 5 
U.S.C. 557(b) to ensure clarity regarding the basis for the Attorney 
General's authority to review OCAHO cases.

IV. Regulatory Requirements

A. Administrative Procedure Act

    The Department has determined that this rule is not subject to the 
general requirements of notice and comment and a 30-day delay in the 
effective date. The requirements of 5 U.S.C. 553 do not apply to these 
regulatory changes because this IFR is a rule of ``agency organization, 
procedure, or practice.'' 5 U.S.C. 553(b)(A). This IFR, as with prior 
OCAHO procedural rulemakings, pertains solely to agency procedures and 
practices regarding the processing of cases before OCAHO and does not 
diminish or reduce any substantive

[[Page 70590]]

rights possessed by parties utilizing those practices and procedures. 
See, e.g., Rules of Practice and Procedure for Administrative Hearings 
Before Administrative Law Judges in Cases Involving Allegations of 
Unlawful Employment of Aliens and Unfair Immigration-Related Employment 
Practices, 56 FR 50049, 50052 (Oct. 3, 1991); Rules of Practice and 
Procedure for Administrative Hearings Before Administrative Law Judges 
in Cases Involving Allegations of Unlawful Employment of Aliens, Unfair 
Immigration-Related Employment Practices, and Document Fraud, 64 FR 
7076, 7072 (Feb. 12, 1999). Although the Department has determined that 
this IFR is not subject to the general requirements of notice and 
comment and a 30-day delay in the effective date, it is nevertheless 
promulgating this rule as an IFR, providing the public with the 
opportunity for post-promulgation comment.

B. Regulatory Flexibility Act

    The Department has reviewed this regulation in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that 
this IFR will not have a significant economic impact on a substantial 
number of small entities. Further, a regulatory flexibility analysis is 
not required when the agency is not required to publish a general 
notice of proposed rulemaking, as is the case here. 5 U.S.C. 604(a) 
(``When an agency promulgates a final rule under section 553 of this 
title, after being required by that section or any other law to publish 
a general notice of proposed rulemaking . . . the agency shall prepare 
a final regulatory flexibility analysis.''); see also 5 U.S.C. 601(2) 
(defining a rule for purposes of the Regulatory Flexibility Act ``as 
any rule for which the agency publishes a general notice of proposed 
rulemaking pursuant to section 553(b)'').

C. Unfunded Mandates Reform Act of 1995

    This IFR will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995. See 2 U.S.C. 1532(a).

D. Congressional Review Act

    This IFR is not a major rule as defined by section 804 of the 
Congressional Review Act. See 5 U.S.C. 804(2). Moreover, this action is 
a rule of agency organization that does not substantially affect the 
rights or obligations of non-agency parties. Accordingly, it is not a 
``rule'' as that term is used in 5 U.S.C. 804(3). Therefore, the 
reports to Congress and the Government Accountability Office specified 
by 5 U.S.C. 801 are not required.

E. Executive Order 12866 (Regulatory Planning and Review), Executive 
Order 13563 (Improving Regulation and Regulatory Review), and Executive 
Order 14094 (Modernizing Regulatory Review)

    Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 
(Sept. 30, 1993), Executive Order 13563, Improving Regulation and 
Regulatory Review, 76 FR 3821 (Jan. 18, 2011), and Executive Order 
14094, Modernizing Regulatory Review, 88 FR 21879 (Apr. 6, 2023), 
direct 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 effects, 
distributive impacts, and equity). Executive Order 13563 also 
emphasizes the importance of using the best available methods to 
quantify costs and benefits, and of reducing costs, harmonizing rules, 
and promoting flexibility.
    Because this IFR is limited to agency organization, management, or 
personnel matters, it is not subject to review by the Office of 
Management and Budget pursuant to section 3(d)(3) of Executive Order 
12866. Further, because this IFR is one of internal organization, 
management, or personnel, it is not subject to the requirements of 
Executive Order 13563.

F. Executive Order 13132 (Federalism)

    This IFR will 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. Therefore, in accordance with section 6 of Executive 
Order 13132, Federalism, 64 FR 43225, 43257-58 (Aug. 4, 1999), it is 
determined that this IFR does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

G. Executive Order 12988 (Civil Justice Reform)

    This IFR meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988, 61 FR 4729, 4730-32 (Feb. 5, 
1996).

H. Paperwork Reduction Act

    This IFR does not propose new or revisions to existing 
``collection[s] of information'' as that term is defined under the 
Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 (May 
22, 1995), codified at 44 U.S.C. 3501 et seq., and its implementing 
regulations, 5 CFR part 1320. See 44 U.S.C. 3502(3).

List of Subjects in 28 CFR Part 68

    Administrative practice and procedure, Aliens, Citizenship and 
naturalization, Civil Rights, Employment, Equal employment opportunity, 
Immigration.

    Accordingly, for the reasons set forth in the preamble and by the 
authority vested in me as Attorney General by law, part 68 of title 28 
of the Code of Federal Regulations is amended as follows:

PART 68--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE 
HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING 
ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF ALIENS, UNFAIR IMMIGRATION-
RELATED EMPLOYMENT PRACTICES, AND DOCUMENT FRAUD

0
1. The authority citation for part 68 is revised to read as follows:

    Authority: 5 U.S.C. 301, 554, 557(b); 8 U.S.C. 1103, 1324a, 
1324b, and 1324c; 28 U.S.C. 509, 510, and 2461 note.


0
2. Amend Sec.  68.2 by revising the definitions of ``Entry'' and 
``Final agency order'' to read as follows:


Sec.  68.2  Definitions.

* * * * *
    Entry means the date the Administrative Law Judge, the Chief 
Administrative Hearing Officer, or the Attorney General signs the 
order;
    Final agency order is an Administrative Law Judge's final order, in 
cases arising under sections 274A, 274B, and 274C of the INA, that has 
not been modified, vacated, or remanded by the Chief Administrative 
Hearing Officer pursuant to Sec.  68.54, referred to the Attorney 
General for review pursuant to Sec.  68.55(a) or accepted by the 
Attorney General for review pursuant to Sec.  68.55(b)(3). 
Alternatively, if the Chief Administrative Hearing Officer modifies or 
vacates the final order pursuant to Sec.  68.54, the modification or 
vacatur becomes the final agency order if it has not been referred to 
the Attorney General for review pursuant to Sec.  68.55(a) or accepted 
by the Attorney General for review pursuant to

[[Page 70591]]

Sec.  68.55(b)(3). If the Attorney General enters an order that 
modifies or vacates either the Chief Administrative Hearing Officer's 
or the Administrative Law Judge's order, the Attorney General's order 
is the final agency order.
* * * * *

0
3. Amend Sec.  68.52 by revising paragraph (g) to read as follows:


Sec.  68.52  Final order of the Administrative Law Judge.

* * * * *
    (g) Final agency order. In a case arising under section 274A, 274B, 
or 274C of the INA, the Administrative Law Judge's order becomes the 
final agency order sixty (60) days after the date of entry of the 
Administrative Law Judge's order, unless:
    (1) In a case arising under section 274A or 274C of the INA, the 
Chief Administrative Hearing Officer modifies, vacates, or remands the 
Administrative Law Judge's final order pursuant to Sec.  68.54; or
    (2) In a case arising under section 274A, 274B, or 274C of the INA, 
the order is referred to the Attorney General pursuant to Sec.  68.55.

0
4. Amend Sec.  68.55 by revising the section heading, paragraph (a), 
and the first sentence of paragraph (c) introductory text to read as 
follows:


Sec.  68.55  Referral of cases arising under section 274A, 274B, or 
274C to the Attorney General for review.

    (a) Referral of cases by direction of the Attorney General. The 
Chief Administrative Hearing Officer shall promptly refer to the 
Attorney General for review any final order in cases arising under 
section 274A, 274B, or 274C of the INA if the Attorney General so 
directs the Chief Administrative Hearing Officer. For cases arising 
under section 274A and 274C, the Attorney General may so direct the 
Chief Administrative Hearing Officer within no more than thirty (30) 
days of the entry of a final order by the Chief Administrative Hearing 
Officer modifying or vacating an Administrative Law Judge's final 
order, or within no more than sixty (60) days of the entry of an 
Administrative Law Judge's final order, if the Chief Administrative 
Hearing Officer does not modify or vacate the Administrative Law 
Judge's final order. For cases arising under section 274B, the Attorney 
General may so direct the Chief Administrative Hearing Officer within 
no more than sixty (60) days of the entry of a final order by the 
Administrative Law Judge. When a final order is referred to the 
Attorney General in accordance with this paragraph (a), the Chief 
Administrative Hearing Officer shall give the Administrative Law Judge 
and all parties a copy of the referral.
* * * * *
    (c) * * * When a final order of an Administrative Law Judge or the 
Chief Administrative Hearing Officer is referred to the Attorney 
General pursuant to paragraph (a) of this section, or a referral is 
accepted in accordance with paragraph (b)(3) of this section, the 
Attorney General shall review the final order in accordance with the 
provisions of this section. * * *
* * * * *

0
5. Amend Sec.  68.56 by revising the first sentence to read as follows:


Sec.  68.56  Judicial review of a final agency order in cases arising 
under section 274A or 274C.

    In cases arising under section 274A or 274C of the INA, a person or 
entity adversely affected by a final agency order issued under Sec.  
68.52(c) or (e), Sec.  68.54(e), or Sec.  68.55(d) may file, within 
forty-five (45) days after the date of the final agency order, a 
petition in the United States Court of Appeals for the appropriate 
circuit for review of the final agency order. * * *

0
6. Revise Sec.  68.57 to read as follows:


Sec.  68.57  Judicial review of a final agency order in cases arising 
under section 274B.

    In cases arising under section 274B of the INA, any person 
aggrieved by a final agency order issued under Sec.  68.52(d) or Sec.  
68.55(d) may, within sixty (60) days after entry of the order, seek 
review of the final agency order in the United States Court of Appeals 
for the circuit in which the violation is alleged to have occurred or 
in which the employer resides or transacts business. If a final agency 
order is not appealed, the Special Counsel (or, if the Special Counsel 
fails to act, the person filing the charge, other than the Department 
of Homeland Security) may file a petition in the United States District 
Court for the district in which the violation that is the subject of 
the final agency order is alleged to have occurred, or in which the 
respondent resides or transacts business, requesting that the order be 
enforced.

Merrick B. Garland,
Attorney General.
[FR Doc. 2023-22206 Filed 10-11-23; 8:45 am]
BILLING CODE 4410-30-P