2011-6961. Reorganization of Regulations on Control of Employment of Aliens

AGENCY:

Executive Office for Immigration Review, Department of Justice.

ACTION:

Final rule.

SUMMARY:

This final rule adopts without change an interim rule with request for comments published in the Federal Register on January 15, 2009. The interim rule amended regulations of the Executive Office for Immigration Review (EOIR), Department of Justice, by deleting the unnecessary, duplicative provisions in part 1274a of chapter V in title 8 of the Code of Federal Regulations (CFR) that are the responsibility of the Department of Homeland Security (DHS). This rule also revised the remaining provisions in part 1274a to reference the applicable DHS regulations.

DATES:

This rule is effective March 24, 2011.

FOR FURTHER INFORMATION CONTACT:

Robin M. Stutman, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone [phone] (not a toll-free call).

SUPPLEMENTARY INFORMATION:

On January 15, 2009, the Department of Justice published an interim rule with request for comments amending 8 CFR part 1274a. Reorganization of Regulations on Control of Employment of Aliens, 74 FR 2337 (Jan. 15, 2009). The Homeland Security Act of 2002, as amended, transferred the functions of the former Immigration and Naturalization Service (INS) from the Department of Justice to DHS; however, it retained under the authority of the Attorney General the functions of EOIR, a separate agency within the Department of Justice. As the existing regulations often intermingled the responsibilities of the former INS and EOIR, this transfer required a reorganization of title 8 of the CFR in February 2003, including the establishment of a new chapter V in 8 CFR pertaining to EOIR. As part of this reorganization, a number of regulations pertaining to the responsibilities of DHS intentionally were duplicated in the new chapter V because those regulations also included provisions relating to the responsibilities of EOIR. As explained in the interim rule, the Department of Justice has determined that most of the duplicated regulations in part 1274a pertain to functions that are DHS's responsibility and do not need to be reproduced in EOIR's regulations in chapter V. The interim rule deleted the unnecessary, duplicative regulations in part 1274a and revised the remaining EOIR provisions to reference the applicable DHS regulations.

The Department of Justice provided an opportunity for post-promulgation comment even though this is a rule of internal agency organization. The comment period ended March 16, 2009. Two comments were received, including one from a legal service provider and another from a member of the public. The first comment proposed adding a new document—proof of asylee status—to the list of “Documents that Establish Employment Authorization” in 8 CFR 274a.2. The Department notes that the two sections mentioned by the commenter, 8 CFR 274a.2 and 274a.12, are DHS regulations and are not part of the EOIR regulations. This comment appears to be addressing changes proposed by DHS in its interim rule, Documents Acceptable for Employment Eligibility Verification, 73 FR 76505 (Dec. 17, 2008). Furthermore, the comment did not discuss EOIR's regulations or EOIR's interim rule. The second comment expressed a general opinion about employment of aliens in the United States and did not discuss EOIR's interim rule. As neither comment addressed the changes set forth in the interim rule, there is no reason to revise the provisions of that rule. Accordingly, the interim rule amending 8 CFR part 1274a that was published on January 15, 2009, is being adopted as a final rule without change.

Regulatory Requirements

Administrative Procedure Act

The Department of Justice provided an opportunity for post-promulgation public comment under 5 U.S.C. 553, even though compliance with the requirements in 5 U.S.C. 553 with regard to notice of proposed rulemaking and delayed effective date is unnecessary. Such compliance is unnecessary because this rule makes only technical amendments to the organization, procedures, and practices of the Department of Justice to improve the organization of the Department regulations, reflects the transfer of functions contemplated by the Homeland Security Act of 2002, and recodifies existing regulations.

Regulatory Flexibility Act

As notice of proposed rulemaking is not required for this rule under the Administrative Procedure Act, 5 U.S.C. 553, the provisions of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., do not apply.

Paperwork Reduction Act

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this interim rule because there are no new or revised recordkeeping or reporting requirements.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, (SBREFA), 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Congressional Review Act

This action pertains to agency organization, procedures, and practices and does not substantially affect the rights or obligations of non-agency parties. Accordingly, it is not a “rule” as that term is used by the Congressional Review Act (Subtitle E, SBREFA). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Executive Order 12866

This rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. The Department of Justice has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

Executive Order 13132

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, the Department of Justice has determined that this rule does not have sufficient federalism implications to warrant a federalism summary impact statement.

Executive Order 12988

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

List of Subjects in Part 1274a

• Administrative practice and procedure
• Immigration

PART 1247a—[AMENDED]

Accordingly, the interim rule amending 8 CFR part 1274a that was published at 74 FR 2337 on January 15, 2009, is adopted as a final rule without change.

Dated: March 18, 2011.

Eric H. Holder, Jr.,

Attorney General.