Federal Register, Volume 88 Issue 196 (Thursday, October 12, 2023)

[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]

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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.

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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).
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\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.
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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.

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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.
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\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.
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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]
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