[Federal Register Volume 73, Number 38 (Tuesday, February 26, 2008)]
[Rules and Regulations]
[Pages 10130-10137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3320]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 270, 274a, and 280
RIN 1653-AA39
DEPARTMENT OF JUSTICE
28 CFR Part 68
Executive Office for Immigration Review
8 CFR Part 1274a
RIN 1125-AA61
[EOIR Docket No. 165F; A.G. Order No. 2944-2008]
Inflation Adjustment for Civil Monetary Penalties Under Sections
274A, 274B, and 274C of the Immigration and Nationality Act
AGENCIES: U.S. Immigration and Customs Enforcement, DHS; Executive
Office for Immigration Review, Justice.
ACTION: Final rules.
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SUMMARY: As required by the Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended by the Debt Collection Improvement
Act of 1996, the Department of Homeland Security and the Department of
Justice are
[[Page 10131]]
publishing these rules adjusting for inflation the civil monetary
penalties assessed or enforced by those two Departments under sections
274A, 274B, and 274C of the Immigration and Nationality Act (INA). The
adjusted civil money penalties are calculated according to the specific
formula laid out by law, and will be effective for violations occurring
on or after the effective date of these rules.
DATES: These rules are effective March 27, 2008.
FOR FURTHER INFORMATION CONTACT: Concerning amendments to 8 CFR parts
270 and 274a: Marissa Hernandez, National Program Manager for Worksite
Enforcement, Office of Investigations, 425 I Street, NW., Washington,
DC 20536, telephone number (202) 307-0071 (not a toll free call).
Concerning amendments made to 8 CFR part 1274a and 28 CFR part 68:
Kevin J. Chapman, Acting General Counsel, Executive Office for
Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church,
Virginia 22041, telephone number (703) 305-0470 (not a toll free call).
SUPPLEMENTARY INFORMATION:
I. Background
The Federal Civil Penalties Inflation Adjustment Act of 1990, Pub.
L. 101-410 (Adjustment Act), 28 U.S.C. 2461 note, provides for the
regular evaluation of civil monetary penalties to ensure that they
continue to maintain their deterrent effect and that penalty amounts
due the Federal Government are properly accounted for and collected.
On April 26, 1996, the President signed into law the Omnibus
Consolidated Rescissions and Appropriations Act of 1996, Pub. L. 104-
134. Section 31001 of that Act, also known as the Debt Collection
Improvement Act of 1996 (Improvement Act), amended the Adjustment Act
to provide more effective tools for government-wide collection of
delinquent debt. Section 31001(s)(1) of the Improvement Act added a new
section 7 to the Adjustment Act providing that any increase in a civil
monetary penalty made pursuant to this Act shall apply only to
violations that occur after the date the increase takes effect. The
Improvement Act provides that the adjustments for inflation required by
the Adjustment Act should be made every four years.
The amounts of the adjustments are determined according to a
detailed formula specified in the Adjustment Act, incorporating a
``cost-of-living adjustment'' that is defined in section 5(b) of the
Adjustment Act as being the percentage (if any) for each civil monetary
penalty by which:
(1) The Consumer Price Index for the month of June of the calendar
year preceding the adjustment, exceeds
(2) the Consumer Price Index for the month of June of the calendar
year in which the amount of such civil monetary penalty was last set or
adjusted pursuant to law.
In addition, section 5(a) of the Adjustment Act provides that any
increase so determined under this formula is subject to rounding under
the following specified standards:
For penalties less than or equal to $100, increases are
rounded to multiples of $10;
For penalties greater than $100 but less than or equal to
$1,000, increases are rounded to multiples of $100;
For penalties greater than $1,000 but less than or equal
to $10,000, increases are rounded to multiples of $1,000;
For penalties greater than $10,000 but less than or equal
to $100,000, increases are rounded to multiples of $5,000;
For penalties greater than $100,000 but less than or equal
to $200,000, increases are rounded to multiples of $10,000; and
For penalties greater than $200,000, increases are rounded
to multiples of $25,000.
Section 31001(s)(2) of the Improvement Act also provides that the
first adjustment of a civil monetary penalty made pursuant to these
procedures may not exceed 10 percent of the penalty.
II. Civil Penalties Imposed After Hearing Before an Administrative Law
Judge
These final rules revise the current regulations implementing three
different sections in the Immigration and Nationality Act (INA) that
provide for the imposition of civil money penalties to be imposed for
violations of the law, each of which include provisions for a hearing
before an administrative law judge (ALJ) to adjudicate cases and set
the amount of the penalty. The Department of Homeland Security (DHS)
has enforcement responsibilities for two of these civil penalty
provisions,\1\ while the Civil Rights Division of the Department of
Justice has enforcement responsibilities for the third.
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\1\ Although the enforcement of these provisions of the
immigration laws was initially assigned to the Attorney General, and
had been delegated to the former Immigration and Naturalization
Service (INS), the Homeland Security Act abolished the former INS
and transferred its functions to DHS, effective March 1, 2003. See 6
U.S.C. 251, 291.
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Section 274A of the INA (8 U.S.C. 1324a). Section 274A provides for
imposition of civil penalties for various specified unlawful acts
pertaining to the employment eligibility verification process (Form I-
9) and the employment of unauthorized aliens. These penalties cover,
among other things, the knowing employment of unauthorized aliens and
the failure to comply with the employment verification requirements
relating to completion of Form I-9.
U.S. Immigration and Customs Enforcement (ICE), in DHS, conducts
the investigations and initiates the process for imposing civil money
penalties with respect to employer sanctions under section 274A of the
INA and 8 CFR part 274a.
Section 274B of the INA (8 U.S.C. 1324b). Section 274B provides for
imposition of civil penalties for specified actions constituting
immigration-related unfair employment practices. These penalties cover,
among other things, discrimination against job applicants or employees
based on nationality or citizenship status, and violations of the law
by an employer who refuses to accept permissible documents presented by
an employee in compliance with the Form I-9 requirements (for example,
by insisting that an employee must present a so-called ``green card''
even though the employee has already presented proper documentation to
complete Form I-9).
The Office of Special Counsel for Immigration-Related Unfair
Employment Practices (OSC), a component within the Civil Rights
Division of the Department of Justice, is responsible for investigating
alleged violations of section 274B of the INA pertaining to unfair
immigration-related employment practices (called ``charges''). See 28
CFR part 44. After investigating the charges, OSC is authorized to file
a complaint to initiate a civil penalty proceeding. The law also
includes a private action provision allowing the person making a charge
to file a complaint directly if OSC has not filed a complaint within
120 days after receiving the charges.
Section 274C of the INA (8 U.S.C. 1324c). Section 274C provides for
imposition of civil penalties for specified actions relating to
immigration-related document fraud.
ICE conducts the investigations and initiates the process for
imposing civil money penalties with respect to document fraud under
section 274C of the INA and 8 CFR part 270.
Hearings for Adjudicating Complaints and Imposing Penalties. Each
of these
[[Page 10132]]
three sections of the INA provides that, when administrative hearings
are necessary to adjudicate the complaints and impose the civil
penalties, the hearings are to be conducted before an ALJ. Accordingly,
the Attorney General established the Office of the Chief Administrative
Hearing Officer (OCAHO), an office within the Executive Office for
Immigration Review (EOIR) in the Department of Justice, to conduct the
ALJ hearings for civil penalty actions under each of these three
statutes. See 28 CFR part 68.
ALJ hearings are conducted in every case under section 274B of the
INA. However, an ALJ hearing is conducted under sections 274A and 274C
of the INA only if the subject of the civil penalty proceeding requests
an administrative hearing, after the issuance of ICE's notice of intent
to fine describing the violations and stating the intended amount of
the civil penalties. If the subject does not submit a request for an
ALJ hearing within the time allowed, then the civil penalties are
imposed as determined by ICE. If the subject does make a timely request
for a hearing, then an ALJ adjudicates the alleged violations and
issues a decision, including a determination of the amount of the civil
penalties imposed for any violations found, pursuant to the rules in 28
CFR part 68. An ALJ decision in a case arising under section 274A or
274C of the INA is subject to review by the Chief Administrative
Hearing Officer and the Attorney General, as provided in 28 CFR 68.54
and 68.55.
Because both DHS and EOIR can impose penalties relating to employer
sanctions and document fraud cases (sections 274A and 274C,
respectively), the current regulations of both Departments specify the
range of penalties applicable in these kinds of cases. As noted above,
the minimum and maximum civil penalty amounts for each violation will
necessarily be the same whether the penalties are imposed by DHS
without a hearing, or by OCAHO after an administrative hearing. See 8
CFR 274a.10 and 270.3; 28 CFR 68.52(c) and (e).
III. Adjustment of Civil Money Penalties
Under the Adjustment Act, as amended, federal agencies are
obligated to adopt, by regulation, revised amounts for statutory civil
penalties in order to account for inflation. These regulations carry
out that statutory mandate. Since the statutory formula is extremely
detailed, leaving no discretion as to setting the specific amounts,
these rules implement the new inflation adjustments for the civil
penalties without the need for a notice and comment period.
Pursuant to the authority of the Adjustment Act, the Department of
Justice has previously adjusted the civil money penalties for
inflation, increasing the specific amounts stated in sections 274A,
274B, and 274C of the INA. The amounts of the civil money penalties
currently being imposed under these provisions were last adjusted for
inflation in 1999. See 64 FR 7066 (Feb. 12, 1999) (amending 28 CFR part
68); 64 FR 47099 (Aug. 30, 1999) (amending 8 CFR parts 270 and 274a,
among others). Since then, as noted, the division of responsibilities
between the Attorney General and the Secretary of DHS requires action
by both Departments in order to effectuate a further adjustment of the
civil penalties, since the current civil penalty amounts are codified
in the implementing regulations of both Departments.
In these final rules, the Secretary is amending 8 CFR parts 274a
and 270 of the DHS regulations to incorporate the revised schedule of
civil penalties, as adjusted for inflation according to the statutory
formula described above.
At the same time, the Attorney General is amending 28 CFR part 68
of the Justice Department regulations (the rules governing ALJ
proceedings in OCAHO) to make conforming changes reflecting the
adjusted schedule of civil penalties.
The Attorney General is also revising a provision in the EOIR
regulations, 8 CFR part 1274a.10, to eliminate the current language and
to substitute a cross-reference to the existing DHS regulations in 8
CFR part 274a and the existing OCAHO regulations in 28 CFR part 68.
Section 1274a.10, which simply reproduces the existing DHS regulations
at 8 CFR 274a.10, was promulgated in 2003, in connection with the
transfer of authority from the former INS to DHS. To ensure that all
relevant authority relating to the shared responsibilities was
preserved, the Attorney General at that time duplicated in their
entirety the regulations in 8 CFR part 274a (which were being
transferred to DHS) into the then-new part 1274a so that these
provisions would also continue to be part of the Attorney General's
regulations. See 68 FR 9824 (Feb. 28, 2003). However, since the penalty
provisions in section 1274a.10 do not add anything to the existing
regulatory provisions, the Attorney General is now revising section
1274a.10 to eliminate the duplicative language and to substitute new
language cross-referencing the existing DHS regulations in 8 CFR
274a.10 and the existing OCAHO regulations in 28 CFR part 68.
As noted, the current amounts of the civil money penalties under
these three statutory provisions were last adjusted, by regulation, in
1999. Pursuant to section 5(b) of the Adjustment Act, the cost of
living adjustment is calculated with reference to the Consumer Price
Index for all urban consumers for June 1999 (497.9) and for June 2007
(the year preceding the current inflation adjustments) (624.1). This
works out to an inflation adjustment of 25.35 percent. Pursuant to the
statutory formula specified in the Adjustment Act, the civil money
penalties under sections 274A, 274B, and 274C of the INA are being
adjusted as indicated in the chart below.
It should be noted that when the inflation adjustment formula was
applied in 1999, not all of the penalties were affected. A few remained
unchanged because the inflation adjustment when the calculations were
last made in 1999 was too small to warrant an inflation increase under
the statutory rounding formula set forth in the Adjustment Act.
Nonetheless, for the convenience of the reader, we have reproduced
those provisions in the chart.
Two sets of penalties were not adjusted before because they were
below the threshold for an inflation adjustment in 1999, the last time
the penalties were adjusted for inflation, but they are being adjusted
by this rule:
Section 403(a)(4)(C)(ii) of the Illegal Immigration Reform
and Immigrant Responsibility Act, Pub. L. 104-208, Div. C (codified at
8 U.S.C. 1324a note and described in 28 CFR 68.52(c)(6)) provides for a
civil penalty of not less than $500 and not more than $1,000 for an
employer participating in the electronic employment eligibility
verification program who fails to notify DHS that it ultimately was
unable to confirm an employee's employment eligibility.
Section 274C(a) of the INA was amended in 1997 to provide
for a civil penalty of not less than $250 and not exceeding $2,000 in
two additional circumstances: paragraph (5) covers preparing, filing,
or assisting others in preparing or filing falsely made or fraudulent
documents or each proscribed activity; and paragraph (6) relates to
presenting a travel document to board an air or sea carrier but then
failing to present that document upon arrival at the U.S. port of
entry.
Because these penalties are being adjusted for the first time, the
penalties are being increased by ten percent, the maximum allowable
increase for initial increases provided for by section 31001(s)(2) of
the Improvement Act. In
[[Page 10133]]
addition, this rule makes a conforming change to 8 CFR 280.53, which
references the second set of penalties, since these penalties are now
being adjusted.
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CPI
Current factor Raw Rounded Adjusted
Statute Min/ Max penalty Year last adjusted (2008) increase Rounder increase penalty
(percent) (2008)
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Hiring, recruiting and referral employer sanctions, first order
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8 U.S.C. 1324a(e)(4)(A)(i)..... Min....... 275 1999..................... 25.35 70 100...................... 100 375
8 CFR 274a.10(b)(1)(ii)(A).....
8 U.S.C. 1324a(e)(4)(A)(i).... Max....... 2,200 1999..................... 25.35 558 1,000.................... 1,000 3,200
8 CFR 274a.10(b)(1)(ii)(A).....
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Hiring, recruiting and referral employer sanctions, second order
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8 U.S.C. 1324a(e)(4)(A)(ii).... Min....... 2,200 1999..................... 25.35 558 1,000.................... 1,000 3,200
8 CFR 274a.10(b)(1)(ii)(B).....
8 U.S.C. 1324a(e)(4)(A)(ii).... Max....... 5,500 1999..................... 25.35 1,394 1,000.................... 1,000 6,500
8 CFR 274a.10(b)(1)(ii)(B).....
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Hiring, recruiting and referral employer sanctions, subsequent order
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8 U.S.C. 1324a(e)(4)(A)(iii)... Min....... 3,300 1999..................... 25.35 836 1,000.................... 1,000 4,300
8 CFR 274a.10(b)(1)(ii)(C).....
8 U.S.C. 1324a(e)(4)(A)(iii).. Max....... 11,000 1999..................... 25.35 2,788 5,000.................... 5,000 16,000
8 CFR 274a.10(b)(1)(ii)(C).....
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Paperwork violation
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8 U.S.C. 1324a(e)(5).......... Min....... 110 1999..................... 25.35 28 100...................... 0 110
8 CFR 274a.10(b)(2)............
28 CFR 68.52(c)(5).............
8 U.S.C. 1324a(e)(5).......... Max....... 1,100 1999..................... 25.35 279 1,000.................... 0 1,100
8 CFR 274a.10(b)(2)............
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Violation relating to participating employer's failure to notify DHS of final nonconfirmation of employee's employment eligibility [Not previously
adjusted]
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8 U.S.C. 1324a (note)......... .......... 500 enacted in 1997.......... 29.97 150 10% cap by statute....... 50 550
28 CFR 68.52(c)(6).............
8 U.S.C. 1324a (note)......... .......... 1,000 enacted in 1997.......... 29.97 300 10% cap by statute....... 100 1,100
28 CFR 68.52(c)(6).............
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Unlawful employment of aliens, per person, first order
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8 U.S.C. 1324a(e)(4)(A)(i).... Min....... 275 1999..................... 25.35 70 100...................... 100 375
28 CFR 68.52(c)(1)(i)..........
8 U.S.C. 1324a(e)(4)(A)(i).... Max....... 2,200 1999..................... 25.35 558 1,000.................... 1,000 3,200
28 CFR 68.52(c)(1)(i)..........
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Unlawful employment of aliens, per person, second order
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8 U.S.C. 1324a(e)(4)(A)(ii).... Min....... 2,200 1999..................... 25.35 558 1,000.................... 1,000 3,200
28 CFR 68.52(c)(1)(ii).........
8 U.S.C. 1324a(e)(4)(A)(ii).... Max....... 5,500 1999..................... 25.35 1,394 1,000.................... 1,000 6,500
28 CFR 68.52(c)(1)(ii).........
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Unlawful employment of aliens, per person, subsequent order
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8 U.S.C. 1324a(e)(4)(A)(ii).... Min....... 3,300 1999..................... 25.35 836 1,000.................... 1,000 4,300
28 CFR 68.52(c)(1)(ii).........
8 U.S.C. 1324a(e)(4)(A)(iii)... Max....... 11,000 1999..................... 25.35 2,788 5,000.................... 5,000 16,000
28 CFR 68.52(c)(1)(iii)........
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Violation/prohibition of indemnity bonds
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8 U.S.C. 1324a(g)(2)........... .......... 1,100 1999..................... 25.35 279 1,000.................... 0 1,100
8 CFR 274a.8(b)................
28 CFR 68.52(c)(7).............
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Document fraud, first order--for violations described in 8 U.S.C. 1324c(a)(1)-(4)
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8 U.S.C. 1324c(d)(3)(A)........ .......... 275 1999..................... 25.35 70 100...................... 100 375
8 CFR 270.3(b)(1)(ii)..........
[[Page 10134]]
8 U.S.C. 1324c(d)(3)(A)........ .......... 2,200 1999..................... 25.35 558 1,000.................... 1,000 3,200
8 CFR 270.3(b)(1)(ii)..........
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Document fraud, subsequent order--for violations described in 8 U.S.C. 1324c(a)(1)-(4)
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8 U.S.C. 1324c(d)(3)(B)........ .......... 2,200 1999..................... 25.35 558 1,000.................... 1,000 3,200
8 CFR 270.3(b)(1)(ii)..........
8 U.S.C. 1324c(d)(3)(B)........ .......... 5,500 1999..................... 25.35 1,394 1,000.................... 1,000 6,500
8 CFR 270.3(b)(1)(ii)..........
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Document fraud, first order--for violations described in 8 U.S.C. 1324c(a)(5)-(6) [Not previously adjusted.]
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8 U.S.C. 1324c(d)(3)(A)........ .......... 250 enacted in 1997.......... 29.97 75 10% cap by statute....... 25 275
8 CFR 270.3(b)(1)(ii)..........
8 U.S.C. 1324c(d)(3)(A)........ .......... 2,000 enacted in 1997.......... 29.97 599 10% cap by statute....... 200 2,200
8 CFR 270.3(b)(1)(ii)..........
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Document fraud, subsequent order--for violations described in 8 U.S.C. 1324c(a)(5)-(6) [Not previously adjusted.]
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8 U.S.C. 1324c(d)(3)(B)........ .......... 2,000 enacted in 1997.......... 29.97 599 10% cap by statute....... 200 2,200
8 CFR 270.3(b)(1)(ii)..........
8 U.S.C. 1324c(d)(3)(B)........ .......... 5,000 enacted in 1997.......... 29.97 1,498 10% cap by statute....... 500 5,500
8 CFR 270.3(b)(1)(ii)..........
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Unfair immigration-related employment practices, per person, first order
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8 U.S.C. 1324b(g)(2)(B)(iv)(I). Min....... 275 1999..................... 25.35 70 100...................... 100 375
28 CFR 68.52(d)(1)(viii).......
8 U.S.C. 1324b(g)(2)(B)(iv)(I). Max....... 2,200 1999..................... 25.35 558 1,000.................... 1,000 3,200
28 CFR 68.52(d)(1)(viii).......
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Unfair immigration-related employment practices, per person, second order
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8 U.S.C. 1324b(g)(2)(B)(iv)(II) Min....... 2,200 1999..................... 25.35 558 1,000.................... 1,000 3,200
28 CFR 68.52(d)(1)(ix).........
8 U.S.C. 1324b(g)(2)(B)(iv)(II) Max....... 5,500 1999..................... 25.35 1,394 1,000.................... 1,000 6,500
28 CFR 68.52(d)(1)(ix).........
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Unfair immigration-related employment practices, per person, subsequent order
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8 U.S.C. Min....... 3,300 1999..................... 25.35 836 1,000.................... 1,000 4,300
1324b(g)(2)(B)(iv)(III).
28 CFR 68.52(d)(1)(x)..........
8 U.S.C. Max....... 11,000 1999..................... 25.35 2,788 5,000.................... 5,000 16,000
1324b(g)(2)(B)(iv)(III).
28 CFR 68.52(d)(1)(x)..........
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Unfair immigration-related employment practices, document abuse
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8 U.S.C. 1324b(g)(2)(B)(iv)(IV) Min....... 110 1999..................... 25.35 28 100...................... 0 110
28 CFR 68.52(d)(1(xii).........
8 U.S.C. 1324b(g)(2)(B)(iv)(IV) Max....... 1,100 1999..................... 25.35 279 1,000.................... 0 1,100
28 CFR 68.52(d)(1(xii))........
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Again, these changes are being made pursuant to a detailed
statutory formula that does not allow for any discretion or any
variances from the results calculated. The higher civil penalty amounts
will be effective for violations occurring on or after the effective
date of these rules. For violations occurring prior to the effective
date of these rules, the civil penalty amounts set forth in the current
regulations will continue to apply.\2\
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\2\ The current regulations, which implemented the last set of
inflation adjustments in 1999, also include the ranges of civil
penalty amounts for violations that occurred prior to the
adjustment; that is, for violations that occurred prior to September
29, 1999, as well as violations that occurred after the 1999
adjustments were adopted. At this point, the revised regulations
being adopted in these final rules do not set forth the civil
penalty amounts for violations that occurred prior to the adoption
of the adjusted civil penalty schedules in 1999, more than 8 years
ago. Title 28 of the United States Code contains a ``general'' four-
year statute of limitations for civil actions where no precise
statute of limitations has been specified. 28 U.S.C. 1658. In any
event, the amounts of the civil penalties for violations occurring
prior to the adoption of the 1999 regulations have already been
codified in the regulations as they were in effect from 1999 until
the day before the effective date of these new rules.
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These rules fulfill the obligations of the Secretary and the
Attorney General under the Adjustment Act, as amended, to adjust for
inflation the civil monetary penalties under these three statutory
provisions for which both Departments
[[Page 10135]]
have implementing responsibilities. In separate rulemaking actions in
the future, the Secretary will be adjusting other civil money penalties
that are within the responsibility of DHS, and the Attorney General
will be adjusting other civil money penalties that are within the
responsibility of the Department of Justice. See, e.g., 8 CFR 280.53;
28 CFR part 85.
IV. Regulatory Analyses
Administrative Procedure Act, 5 U.S.C. 553
The Secretary and the Attorney General find that good cause exists
under 5 U.S.C. 553(b)(3)(B) for immediate implementation of these final
rules without prior notice and comment. These rules are a
nondiscretionary ministerial action to conform the amount of civil
penalties assessed or enforced by the Department of Homeland Security
and the Department of Justice according to the statutorily mandated
ranges as adjusted for inflation. The Secretary and the Attorney
General are under a legal obligation to adjust these civil penalties
for inflation. The calculation of these inflation adjustments follows
the specific mathematical formula set forth in section 5 of the
Adjustment Act.
Regulatory Flexibility Act
The Secretary and the Attorney General, in accordance with the
Regulatory Flexibility Act, 5 U.S.C. 605(b), have reviewed these rules
and by approving them certify that they will not have a significant
economic impact on a substantial number of small entities. Only those
entities which are determined to have violated Federal law and
regulations would be affected by the inflation adjustments made by
these rules, pursuant to the statutory requirement under the Adjustment
Act, for the penalties imposed under sections 274A, 274B, and 274C of
the INA.
Executive Order 12866--Regulatory Planning and Review
These rules have been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Secretary and the Attorney General have determined that these rules are
not ``significant regulatory actions'' under Executive Order 12866,
section 3(f), Regulatory Planning and Review, and accordingly these
rules have not been reviewed by the Office of Management and Budget.
Executive Order 13132--Federalism
These rules 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 Executive Order
13132, it is determined that these rules do not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988--Civil Justice Reform
These rules meet the applicable standards set forth in sections
3(a) and 3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
These rules 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 will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
These rules are not major rules as defined by the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. These rules
will not result in an annual effect on the economy of $100 million or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Paperwork Reduction Act
The provisions of the Paperwork Reduction Act of 1995, Public Law
104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR
part 1320, do not apply to these rules because there are no new or
revised recordkeeping or reporting requirements.
List of Subjects
8 CFR Part 270
Administrative practice and procedure, Immigration, Law
enforcement.
8 CFR Part 274a
Administrative practice and procedure, Immigration, Law
enforcement.
8 CFR Part 280
Administrative practice and procedure, Immigration, Law
enforcement.
8 CFR Part 1274a
Administrative practice and procedure, Immigration.
28 CFR Part 68
Administrative practice and procedure, Aliens, Citizenship and
naturalization, Civil Rights, Discrimination in employment, Employment,
Equal employment opportunity, Immigration, Nationality, Non-
discrimination.
Department of Homeland Security
8 CFR Chapter I
0
Accordingly, for the reasons set forth in the preamble and pursuant to
my authority as Secretary of Homeland Security, parts 270, 274a, and
280 of chapter I of title 8 of the Code of Federal Regulations are
amended as follows:
PART 270--PENALTIES FOR DOCUMENT FRAUD
0
1. The authority citation for part 270 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, and 1324c; Pub. L. 101-410, 104
Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.
0
2. Section 270.3 is amended by revising paragraphs (b)(1)(ii)(A) and
(b)(1)(ii)(B), and adding paragraphs (b)(1)(ii)(C) and (b)(1)(ii)(D),
to read as follows:
Sec. 270.3 Penalties.
* * * * *
(b) * * *
(1) * * *
(ii) * * *
(A) First offense under section 274C(a)(1) through (a)(4). Not less
than $275 and not exceeding $2,200 for each fraudulent document or each
proscribed activity described in section 274C(a)(1) through (a)(4) of
the Act before March 27, 2008, and not less than $375 and not exceeding
$3,200 for each fraudulent document or each proscribed activity on or
after March 27, 2008.
(B) First offense under section 274C(a)(5) or (a)(6). Not less than
$250 and not exceeding $2,000 for each fraudulent document or each
proscribed activity described in section 274C(a)(5) or (a)(6) of the
Act before March 27, 2008, and not less than $275 and not exceeding
$2,200, for each fraudulent document or each proscribed activity on or
after March 27, 2008.
(C) Subsequent offenses under section 274C(a)(1) through (a)(4).
Not less than $2,200 and not more than $5,500 for
[[Page 10136]]
each fraudulent document or each proscribed activity described in
section 274C(a)(1) through (a)(4) of the Act before March 27, 2008, and
not less than $3,200 and not exceeding $6,500, for each fraudulent
document or each proscribed activity occurring on or after March 27,
2008.
(D) Subsequent offenses under section 274C(a)(5) or (a)(6). Not
less than $2,000 and not more than $5,000 for each fraudulent document
or each proscribed activity described in section 274C(a)(5) or (a)(6)
of the Act before March 27, 2008, and not less than $2,200 and not
exceeding $5,500, for each fraudulent document or each proscribed
activity occurring on or after March 27, 2008.
* * * * *
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
3. The authority citation for part 274a is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2; Pub. L.
101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat.
1321.
0
4. Section 274a.10 is amended by revising paragraphs (b)(1)(ii)(A),
(b)(1)(ii)(B), and (b)(1)(ii)(C) to read as follows:
Sec. 274a.10 Penalties.
* * * * *
(b) * * *
(1) * * *
(ii) * * *
(A) First offense--not less than $275 and not more than $2,200 for
each unauthorized alien with respect to whom the offense occurred
before March 27, 2008, and not less than $375 and not exceeding $3,200,
for each unauthorized alien with respect to whom the offense occurred
occurring on or after March 27, 2008;
(B) Second offense--not less than $2,200 and not more than $5,500
for each unauthorized alien with respect to whom the second offense
occurred before March 27, 2008, and not less than $3,200 and not more
than $6,500, for each unauthorized alien with respect to whom the
second offense occurred on or after March 27, 2008; or
(C) More than two offenses--not less than $3,300 and not more than
$11,000 for each unauthorized alien with respect to whom the third or
subsequent offense occurred before March 27, 2008 and not less than
$4,300 and not exceeding $16,000, for each unauthorized alien with
respect to whom the third or subsequent offense occurred on or after
March 27, 2008; and
* * * * *
PART 280--IMPOSITION AND COLLECTION OF FINES
0
5. The authority citation for part 280 continues to read as follows:
Authority: 8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1253, 1281,
1283, 1284, 1285, 1286, 1322, 1323, and 1330; 66 Stat. 173, 195,
197, 201, 203, 212, 219, 221-223, 226, 227, 230; Pub. L. 101-410,
104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.
Sec. 280.53 [Amended].
0
6. Section 280.53 is amended by removing and reserving paragraph
(d)(3).
Department of Justice
0
Accordingly, for the reasons set forth in the preamble and pursuant to
my authority as Attorney General, part 1274a of chapter V of title 8 of
the Code of Federal Regulations and part 68 of chapter I of title 28 of
the Code of Federal Regulations are amended as follows:
8 CFR Chapter V
PART 1274a--CONTROL OF EMPLOYMENT OF ALIENS
0
1. The authority citation for part 1274a is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a.
0
2. Section 1274a.10 is revised to read as follows:
Sec. 1274a.10 Penalties.
The regulations pertaining to the imposition of penalties for
violations of the provisions of section 274A of the Immigration and
Nationality Act are contained in 8 CFR part 274a and 28 CFR part 68.
28 CFR Chapter I
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
3. The authority citation is revised to read as follows:
Authority: 5 U.S.C. 301, 554; 8 U.S.C. 1103, 1324a, 1324b, and
1324c; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-
134, 110 Stat. 1321.
0
4. In Sec. 68.52, revise paragraphs (c)(1)(i), (c)(1)(ii),
(c)(1)(iii), (c)(6), (d)(1)(viii), (d)(1)(ix), (d)(1)(x), (e)(1)(i),
and (e)(1)(ii) and add paragraphs (e)(1)(iii) and (iv) to read as
follows:
Sec. 68.52 Final order of the Administrative Law Judge.
* * * * *
(c) * * *
(1) * * *
(i) Not less than $275 and not more than $2,200 for each
unauthorized alien with respect to whom there was a violation of either
such paragraph occurring before March 27, 2008; not less than $375 and
not more than $3,200 for each unauthorized alien with respect to whom
there was a violation of either such paragraph occurring on or after
March 27, 2008;
(ii) In the case of a person or entity previously subject to one
final order under this paragraph (c)(1), not less than $2,200 and not
more than $5,500 for each unauthorized alien with respect to whom there
was a violation of either such paragraph occurring before March 27,
2008, and not less than $3,200 and not more than $6,500 for each
unauthorized alien with respect to whom there was a violation of either
such paragraph occurring on or after March 27, 2008; or
(iii) In the case of a person or entity previously subject to more
than one final order under paragraph (c)(1) of this section, not less
than $3,300 and not more than $11,000 for each unauthorized alien with
respect to whom there was a violation of each such paragraph occurring
before March 27, 2008, and not less than $4,300 and not more than
$16,000 for each unauthorized alien with respect to whom there was a
violation of each such paragraph occurring on or after March 27, 2008.
* * * * *
(6) With respect to a violation of section 274A(a)(1)(B) of the INA
where a person or entity participating in a pilot program has failed to
provide notice of final nonconfirmation of employment eligibility of an
individual to the Attorney General as required by Pub. L. 104-208, Div.
C, section 403(a)(4)(C), 110 Stat. 3009, 3009-661 (1996) (codified at 8
U.S.C. 1324a (note)), the final order under this paragraph shall
require the person or entity to pay a civil penalty in an amount of not
less than $500 and not more than $1,000 for each individual with
respect to whom such violation occurred before March 27, 2008, and not
less than $550 and not more than $1,100 for each individual with
respect to whom such violation occurred on or after March 27, 2008.
* * * * *
(d) * * *
(1) * * *
* * * * *
[[Page 10137]]
(viii) Except as provided in paragraph (d)(1)(xii) of this section,
to pay a civil penalty of not less than $275 and not more than $2,200
for each individual discriminated against before March 27, 2008, and
not less than $375 and not more than $3,200 for each individual
discriminated against on or after March 27, 2008;
(ix) Except as provided in paragraph (d)(1)(xii) of this section,
in the case of a person or entity previously subject to a single final
order under section 274B(g)(2) of the INA, to pay a civil penalty of
not less than $2,200 and not more than $5,500 for each individual
discriminated against before March 27, 2008, and not less than $3,200
and not more than $6,500 for each individual discriminated against on
or after March 27, 2008;
(x) Except as provided in paragraph (d)(1)(xii) of this section, in
the case of a person or entity previously subject to more than one
final order under section 274B(g)(2) of the INA, to pay a civil penalty
of not less than $3,300 and not more than $11,000 for each individual
discriminated against before March 27, 2008, and not less than $4,300
and not more than $16,000 for each individual discriminated against on
or after March 27, 2008;
* * * * *
(e) * * *
(1) * * *
(i) Not less than $275 and not more than $2,200 for each document
that is the subject of a violation under section 274C(a)(1) through (4)
of the INA before March 27, 2008, and not less than $375 and not more
than $3,200 for each document that is the subject of a violation under
section 274C(a)(1) through (4) of the INA on or after March 27, 2008;
(ii) Not less than $250 and not more than $2,000 for each document
that is the subject of a violation under section 274C(a)(5) or (6) of
the INA before March 27, 2008, and not less than $275 and not more than
$2,200 for each document that is the subject of a violation under
section 274C(a)(5) or (6) of the INA on or after March 27, 2008;
(iii) In the case of a respondent previously subject to one or more
final orders under section 274C(d)(3) of the INA, not less than $2,200
and not more than $5,500 for each document that is the subject of a
violation under section 274C(a)(1) through (4) of the INA before March
27, 2008, and not less than $3,200 and not more than $6,500 for each
document that is the subject of a violation under section 274C(a)(1)
through (4) of the INA on or after March 27, 2008; or
(iv) In the case of a respondent previously subject to one or more
final orders under section 274C(d)(3) of the INA, not less than $2,000
and not more than $5,000 for each document that is the subject of a
violation under section 274C(a)(5) or (6) of the INA before March 27,
2008, and not less than $2,200 and not more than $5,500 for each
document that is the subject of a violation under section 274C(a)(5) or
(6) of the INA on or after March 27, 2008.
* * * * *
Dated: January 23, 2008.
Michael B. Mukasey,
Attorney General, Department of Justice.
Dated: February 11, 2008.
Michael Chertoff,
Secretary, Department of Homeland Security.
[FR Doc. E8-3320 Filed 2-25-08; 8:45 am]
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