81 FR 53965 - Standards and Procedures for the Enforcement of the Immigration and Nationality Act
DEPARTMENT OF JUSTICE Federal Register Volume 81, Issue 157 (August 15, 2016)
Federal Register Volume 81, Issue 157 (August 15, 2016)
| Page Range | 53965-53978 | |
| FR Document | 2016-18957 |
[Federal Register Volume 81, Number 157 (Monday, August 15, 2016)] [Proposed Rules] [Pages 53965-53978] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-18957] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE 28 CFR Parts 0 and 44 [CRT Docket No. 130; AG Order No. 3726-2016] RIN 1190-AA71 Standards and Procedures for the Enforcement of the Immigration and Nationality Act AGENCY: Civil Rights Division, Department of Justice. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The Department of Justice (Department) proposes to revise regulations implementing a section of the Immigration and Nationality Act concerning unfair immigration-related employment practices. The proposed revisions are appropriate to conform the regulations to the statutory text as amended, simplify and add definitions of statutory terms, update and clarify the procedures for filing and processing charges of discrimination, ensure effective investigations of unfair immigration-related employment practices, reflect developments in nondiscrimination jurisprudence, reflect changes in existing practices (e.g., electronic filing of charges), reflect the new name of the office within the Department charged with enforcing this statute, and replace outdated references. [[Page 53966]] DATES: Comments must be submitted on or before September 14, 2016. Comments received by mail will be considered timely if they are postmarked on or before that date. The electronic Federal Docket Management System (FDMS) will accept comments until midnight Eastern Time at the end of the day. ADDRESSES: You may submit written comments, identified by Docket No. CRT 130, by ONE of the following methods: Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Mail: 950 Pennsylvania Avenue NW--NYA, Suite 9000, Washington, DC 20530. Hand Delivery/Courier: 1425 New York Avenue, Suite 9000, Washington, DC 20005. Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. For additional details on submitting comments, see the ``Public Participation'' heading of the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Alberto Ruisanchez, Deputy Special Counsel, Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, 950 Pennsylvania Avenue NW., Washington, DC 20530, (202) 616-5594 (voice) or (800) 237-2515 (TTY); or Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, 950 Pennsylvania Avenue NW., Washington, DC 20530, (202) 353-9338 (voice) or (800) 237-2515 (TTY). SUPPLEMENTARY INFORMATION: Executive Summary The anti-discrimination provision of the Immigration and Nationality Act, section 274B, codified at 8 U.S.C. 1324b, was enacted by Congress as part of the Immigration Reform and Control Act of 1986, Public Law 99-603, to prohibit certain unfair immigration-related employment practices. Congress provided for the appointment of a Special Counsel for Immigration-Related Unfair Employment Practices (Special Counsel) to enforce this provision. Congress has amended 8 U.S.C. 1324b several times. On November 29, 1990, by section 535 of the Immigration Act of 1990, Public Law 101-649, Congress added a new subsection (a)(6) prohibiting certain unfair documentary practices during the employment eligibility verification process. See 8 U.S.C. 1324b(a)(6) (1994). On September 30, 1996, by section 421 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, div. C, Congress further amended that provision by providing that unfair documentary practices were unlawful only if done ``for the purpose or with the intent of discriminating against an individual in violation of'' 8 U.S.C. 1324b(a)(1). See 8 U.S.C. 1324b(a)(6) (2000). The set of regulations implementing section 1324b, 28 CFR part 44, has not been updated to reflect the statutory text as amended by IIRIRA. The proposed revisions apply to the Special Counsel's investigations and to cases adjudicated under section 1324b before the Department's Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer (OCAHO). The proposed revisions to 28 CFR part 44 incorporate the intent requirement contained in the amended statute, and also change the regulatory provisions regarding the Special Counsel's investigation of unfair immigration-related employment practices. Specifically, the proposed revisions update the ways in which charges of discrimination can be filed, clarify the procedures for processing of such charges, and conform the regulations to the statutory text to clarify the timeframes within which the Special Counsel may file a complaint with OCAHO. The proposed revisions also simplify the definitions of certain statutory terms and define additional statutory terms to clarify the full extent of the prohibitions against unfair immigration-related employment practices and to eliminate ambiguities in the regulatory text. Additionally, the proposed revisions codify the Special Counsel's existing authority to seek and ensure the preservation of evidence during investigations of alleged unfair immigration-related employment practices. The proposed revisions also replace references to the former Immigration and Naturalization Service with references to the Department of Homeland Security (DHS), where applicable, in accordance with the Homeland Security Act of 2002, Public Law 107-296 (HSA). Finally, the proposed revisions reflect the change in name of the office within the Department's Civil Rights Division that enforces the anti-discrimination provision, from the Office of Special Counsel for Immigration-Related Unfair Employment Practices to the Immigrant and Employee Rights Section. Section-by-Section Summary 28 CFR Part 0 Section 0.53 Immigrant and Employee Rights Section This proposed rule would amend this section to reflect the new name of the office through which the Special Counsel enforces the anti- discrimination provision. In 1997, the Department of Justice incorporated the Office of Special Counsel for Immigration-Related Unfair Employment Practices into the Civil Rights Division. 62 FR 23657 (May 1, 1997) (codified at 28 CFR 0.53). That office is now called the Immigrant and Employee Rights Section, headed by the Special Counsel, in the Civil Rights Division. 28 CFR Part 44 Subpart A--Purpose and Definitions Section 44.100 Purpose The proposed rule would amend this section to reflect the enactment of IIRIRA. Section 44.101 Definitions of statutory terms and phrases New paragraph (a) would contain a revised definition of the term ``charge.'' The proposed revisions would simplify this definition by eliminating information related to an alien's immigration status that is not required in determining whether the Special Counsel has jurisdiction to investigate an alleged unfair immigration-related employment practice. The proposed revised definition would ensure that a charge form could be treated as a filed charge even if the form was incomplete, as provided in 28 CFR 44.301, so long as it nonetheless provided sufficient information to determine the agency's jurisdiction. Further, the proposed revisions would codify the longstanding practice of accepting written statements in any language alleging an unfair immigration-related employment practice. New paragraph (b) would contain a revised definition of the term ``charging party.'' The rule would replace the word ``individual'' with the term ``injured party,'' which is later defined, in order to simplify the regulatory text. It would also replace the term ``private organization'' with the term ``entity'' in order to make clear that the scope of entities that may file a charge on behalf of one or more injured parties is not limited to private organizations. In addition, it would clarify that the DHS may file charges alleging ongoing as well as past acts of unlawful employment discrimination. Finally, it [[Page 53967]] would change the phrase ``has been adversely affected'' to ``is adversely affected'' to more closely track the statutory language. New paragraph (c) would define the term ``citizenship status.'' The proposed revisions add this term to the list of defined statutory terms to codify the definition of this term, consistent with the Special Counsel's longstanding guidance to the public. An individual's citizenship status connotes more than simply whether the individual is or is not a U.S. citizen, and encompasses as well a non-U.S. citizen's immigration status. For example, a refugee denied hire because of his or her refugee status could be a victim of unlawful discrimination. Relevant administrative decisions support the conclusion that an individual's citizenship status includes immigration status. See, e.g., Kamal-Griffin v. Cahill Gordon & Reindel, 3 OCAHO no. 568, 1641, 1647 (1993) (``Congress intended the term `citizenship status' to refer both to alienage and to non-citizen status.''). New paragraph (d) would contain a revised definition of ``complaint.'' The proposed revision would clarify that complaints must be filed with OCAHO and allege one or more unfair immigration-related employment practices, and would replace the reference to the former Immigration and Naturalization Service with the DHS, in accordance with the HSA. New paragraph (e) would define the term ``discriminate,'' as that term is used in 8 U.S.C. 1324b. This proposed definition clarifies that discrimination means the act of intentionally treating an individual differently, regardless of the explanation for the discrimination, and regardless of whether it is because of animus or hostility. See, e.g., United States v. Sw. Marine Corp., 3 OCAHO no. 429, 336, 359 (1992). Section 1324b is modeled after Title VII of the Civil Rights Act of 1964, and case law under that provision confirms that intentional discrimination does not require animus or hostility. See Sodhi v. Maricopa Cty. Special Health Care Dist., 10 OCAHO no. 1127, 7-8 (2008) (``Because Sec. 1324b was expressly modeled on Title VII of the Civil Rights Act of 1964 as amended . . . case law developed under that statute has long been held to be persuasive in interpreting Sec. 1324b.''); see also Int'l Union v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991) (stating that, in the context of Title VII, ``absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination.''). New paragraph (f) would define the phrase ``for purposes of satisfying the requirements of section 1324a(b).'' This proposed definition incorporates the well-established construction of this statutory language to include all of an employer's efforts to verify an individual's employment eligibility. Thus, this definition includes not only the process related to completing the DHS Employment Eligibility Verification Form I-9, but also any other employment eligibility verification practices, such as the DHS electronic employment eligibility verification (E-Verify) process. See, e.g., United States v. Mar-Jac Poultry, Inc., 10 OCAHO no. 1148, 11 (2012). New paragraph (g) would define the phrase ``for the purpose or with the intent of discriminating against an individual in violation of paragraph (1),'' as that phrase is used in 8 U.S.C. 1324b(a)(6). This proposed definition clarifies that the act of intentionally treating an individual differently based on national origin or citizenship status is sufficient to demonstrate discriminatory intent regardless of the explanation for the discrimination, and regardless of whether it is based on animus or hostility. See United States v. Life Generations Healthcare, LLC, 11 OCAHO no. 1227, 22-23 (2014) (stating that the discriminatory intent inquiry under 8 U.S.C. 1324b(a)(6) involves ``ask[ing] the question whether the outcome would have been different if the groups had been reversed''). For instance, an employer's request that an individual present more or different documents than required under 8 U.S.C. 1324a(b) because of the individual's citizenship status or national origin constitutes intentional discrimination, even if the employer thought that requesting such documents would help the individual complete the Form I-9 faster or even if the employer was completely unaware of the prohibition against discrimination in the employment eligibility verification process. See id. New paragraph (h) would define ``hiring.'' This proposed definition is intended to make clear that conduct during the entire hiring process, and not solely the employer's final hiring decision, may constitute an unfair immigration-related employment practice. This definition is consistent with the Special Counsel's longstanding interpretation and is well-established in relevant administrative decisions. See, e.g., Mar-Jac Poultry, Inc., 10 OCAHO no. 1148 at 11; Mid-Atlantic Reg'l Org. Coal. v. Heritage Landscape Servs., LLC, 10 OCAHO no. 1134, 8 (2010). New paragraph (i) would contain a revised and simplified definition of ``injured party.'' It would clarify that this term includes any person who claims to be adversely affected by an unfair immigration- related employment practice. New paragraph (j) would define the statutory phrase ``more or different documents than are required under such section.'' In accordance with both the weight of OCAHO authority and the longstanding interpretation of the Special Counsel, this proposed definition provides that an employer's request that an individual present specific documents from the Form I-9 Lists of Acceptable Documents for employment eligibility verification purposes violates 8 U.S.C. 1324b(a)(6) where that request is made because of the individual's national origin or citizenship status. See, e.g., United States v. Townsend Culinary, Inc., 8 OCAHO no. 1032, 454, 507 (1999); United States v. Strano Farms, 5 OCAHO no. 748, 206, 222-23 (1995); United States v. Beverly Ctr., 5 OCAHO no. 762, 347, 351 (1995); United States v. A.J. Bart, Inc., 3 OCAHO no. 538, 1374, 1387 (1993); see also United States v. Zabala Vineyards, 6 OCAHO no. 830, 72, 85-88 (1995) (holding, prior to the enactment of IIRIRA, that 8 U.S.C. 1324b(a)(6) did not prohibit an employer's request for specific documents ``in the absence of evidence that . . . aliens but not other new hires were required to rely on and produce specific documents''). To interpret the statute otherwise would allow employers to discriminate against an individual by imposing more restrictions on the documentation that an individual can show to establish identity and employment authorization than 8 U.S.C. 1324a(b) provides. New paragraph (k) would contain a revised definition of ``protected individual.'' This proposed revision restructures the existing definition for the purpose of clarity, and replaces a reference to the former Immigration and Naturalization Service with the DHS, in accordance with the HSA. New paragraph (l) would define ``recruitment and referral for a fee.'' This proposed definition is intended to make clear that conduct during the entire process of recruitment or referral for a fee, and not solely the employer's final recruitment or referral decision, may constitute an unfair immigration-related employment practice. This definition is consistent with the Special Counsel's longstanding interpretation and is well-established in relevant administrative [[Page 53968]] decisions. See, e.g., Mid-Atl. Reg'l Org. Coal., 10 OCAHO no. 1134 at 8 (``The governing statute specifically applies to recruitment for employment as well as to hiring, and OCAHO cases have long held that it is the entire selection process, and not just the hiring decision alone, which must be considered in order to ensure that there are no unlawful barriers to opportunities for employment.''). New paragraph (m) would contain a revised definition of ``respondent.'' This proposed revision is intended to clarify that an entity against whom the Special Counsel opens an investigation is considered a respondent, regardless of whether the investigation was initiated by a charge filed under 8 U.S.C. 1324b(b)(1) or the Special Counsel's independent statutory authority to investigate possible unfair immigration-related employment practices pursuant to 8 U.S.C. 1324b(d)(1). New paragraph (n) would contain a revised definition of ``Special Counsel.'' This proposed revision makes clear that a duly authorized designee may act as the Special Counsel when the Special Counsel position is vacant. Section 44.102 Computation of Time Section 44.102 is added to provide clarification regarding the calculation of time periods specified in part 44. Section 44.200 Unfair Immigration-Related Employment Practices Paragraph (a) sets forth the three forms of prohibited unfair immigration-related employment practices: (1) Discrimination with respect to hiring, recruiting or referring for a fee, or discharging an individual; (2) intimidation or retaliation; and (3) unfair documentary practices. The proposed revisions would clarify specific parameters of conduct that constitute unfair documentary practices. Paragraph (a)(3) sets forth the prohibition against unfair documentary practices. The proposed revisions would replace the term ``documentation abuses'' with ``unfair documentary practices'' to more clearly describe the prohibited conduct. Further, to conform to the statutory text, which was amended by section 421 of IIRIRA, these proposed revisions clarify that a showing of intentional discrimination is required to establish an unfair documentary practice under 8 U.S.C. 1324b(a)(6). Additionally, the proposed revisions would clarify, based on the plain language of the statutory text, that unfair documentary practices do not require a showing that the discriminatory documentary request was made as a condition of employment. Liability for unfair documentary practices should not depend on whether an individual can prove that the documentary request was made as a condition of employment. Furthermore, the statutory text describing unfair documentary practices does not include any language requiring rescission of an employment offer, discharge, or other economic harm to establish liability. See Mar-Jac Poultry, Inc., 10 OCAHO no. 1148 at 11 (``[A]n `injury' is not necessary to establish liability for document abuse.'' (quoting United States v. Patrol & Guard Enters., Inc., 8 OCAHO no. 1040, 603, 625 (2000))); Townsend Culinary, Inc., 8 OCAHO no. 1032, 454, 498-500 (finding pattern or practice of unfair documentary practices and assessing civil penalties for violations without requiring a showing of economic harm); Robison Fruit Ranch, Inc. v. United States, 147 F.3d 798, 802 (9th Cir. 1998) (request may be an unfair documentary practice even if individual was able to comply with the request). These revisions are consistent with the Special Counsel's longstanding interpretation of the statute. Paragraph (b) sets forth three circumstances in which paragraph (a)(1) does not apply. The proposed revision would replace the reference to paragraph (a) with a reference to paragraph (a)(1) to conform the exceptions language to the statutory text. Section 44.202 Counting Employees for Jurisdictional Purposes This proposed section is newly added and would codify the existing process by which the Special Counsel determines whether the Special Counsel or the Equal Employment Opportunity Commission (EEOC) has jurisdiction over a claim of national origin discrimination under 8 U.S.C. 1324b(a)(1). This section makes clear that the Special Counsel's office will count all full-time and part-time employees employed on the date of the alleged discrimination to determine whether it has jurisdiction over an entity charged with national origin discrimination under 8 U.S.C. 1324b(a)(1). In assessing whether the EEOC might have primary jurisdiction over allegations of national origin discrimination, the Special Counsel will also rely on the method for calculating an entity's number of employees set forth in Title VII of the Civil Rights Act of 1964. See 42 U.S.C. 2000e(b). The Special Counsel will refer section 1324b(a)(1) national origin discrimination charges to the EEOC where an employer has 15 or more employees for each working day in each of 20 or more calendar weeks during the current or preceding calendar year. Id. If an employer does not meet this threshold, but employed more than three employees on the date of the alleged discrimination, the Special Counsel will investigate the charge. Section 44.300 Filing a Charge The proposed revision to paragraph (a) would replace a reference to the former Immigration and Naturalization Service with the DHS, in accordance with the HSA, and simplify the paragraph's structure. Paragraph (b) would be revised to simplify the existing language and clarify that a charge is deemed to be filed on the date it is transmitted or delivered in instances in which it is filed by a method other than by mail. Paragraph (c) would be revised to remove specific references to addresses, in order to avoid the need for future technical revisions; to codify the existing practice of accepting charge filings through means other than mail and courier delivery; and to account for new methods of charge filings in the future. Paragraph (d) would be revised to be consistent with the statutory text. Section 1324b(b)(2) of title 8 of the United States Code prohibits the filing of a charge described in section 1324b(a)(1)(A) with the Special Counsel if a charge with respect to that practice based on the same set of facts has been filed with the EEOC under title VII of the Civil Rights Act of 1964, unless the charge is dismissed as being outside the scope of such title. Current paragraph (d) broadens this prohibition to exclude not only duplicative national origin claims under section 1324b(a)(1)(A) but also citizenship status claims under section 1324b(a)(1)(B) that are based on the same set of facts as an EEOC charge. The amendment would make this paragraph consistent with the statute by limiting this prohibition to only national origin charges filed with the Special Counsel under section 1324b(a)(1)(A). Section 44.301 Receipt of Charge This section would be substantially reorganized to eliminate ambiguities in the existing regulations regarding the process the Special Counsel follows when a charge is received. Paragraph (a) would be revised to clarify when the obligation is triggered under 8 U.S.C. 1324b(b)(1) to provide notice to the charging party and respondent of the Special Counsel's receipt of a charge. Paragraph (b) would set forth the contents of the Special Counsel's [[Page 53969]] written notice to the charging party, replace a reference to the former Immigration and Naturalization Service with the DHS, in accordance with the HSA, and conform language regarding the charging party's time frame for filing a complaint to existing statutory text. See 8 U.S.C. 1324b(d)(2). New paragraph (c) would be substantially similar to existing paragraph (e), which sets forth the contents of the Special Counsel's notice to the respondent. New paragraph (d) would combine existing paragraphs (c)(1) and (d)(2) to more clearly state the process for handling inadequate submissions filed with the Special Counsel. This proposed revision also applies the methodology in revised Sec. 44.300(b) to determine when an inadequate submission later deemed to be a charge is considered filed and when additional information provided pursuant to the Special Counsel's request in response to an inadequate submission is considered timely. While the statute requires that a charge be filed with the Special Counsel within 180 days of the alleged violation, see 8 U.S.C. 1324b(d)(3), the statute does not speak to the handling or processing of inadequate submissions. Existing regulations address inadequate submissions as a practical necessity to prevent the Special Counsel's office from investigating claims that clearly fall outside of its jurisdiction, while at the same time ensuring that timely-filed meritorious charges that may be missing some information can still be considered timely. The revisions to the current regulations aim to set forth more clearly and revise the procedures for handling inadequate submissions, including by retaining the 45-day grace period to allow a charging party to provide requested additional information consistent with the Special Counsel's long-standing practice. This grace period is consistent with the remedial purpose of section 1324b. See United States v. Mesa Airlines, 1 OCAHO no. 74, 461, 513 (1989) (recognizing the ``remedial purpose'' of section 1324b). That purpose would be frustrated, and meritorious claims would be foreclosed, if the Special Counsel imposed a harsh and rigid rule requiring dismissal of timely- filed charges that may allege a violation of section 1324b, but that do not set forth all the elements necessary to be deemed a complete charge. New paragraph (e) would be substantially similar to existing paragraph (c)(2), with an additional revision to ensure consistency in the regulations on the determination of the filing date of an inadequate submission. New paragraph (f) would be added to account for the referral of incomplete or complete charges to the Special Counsel by another government agency. New paragraph (g) would be substantially similar to existing paragraph (d)(1), with an additional clarification regarding the dismissal of inadequate submissions, and the elimination of the term ``with prejudice.'' These proposed revisions would incorporate the standards set forth in administrative decisions for determining whether an incomplete or complete charge that is filed late should nonetheless be considered timely, including when a dismissed incomplete charge is resubmitted for consideration based on equitable reasons. It is well- established in relevant administrative decisions that the 180-day charge filing period is not a jurisdictional prerequisite, but is subject to waiver, estoppel, and equitable tolling. See, e.g., Lardy v. United Airlines, Inc., 4 OCAHO no. 595, 31, 73 (1994); Halim v. Accu- Labs Research, Inc., 3 OCAHO no. 474, 765, 779 (1992). While those equitable modifications of filing deadlines are sparingly applied, they may be available particularly where the failure to meet a deadline arose from circumstances beyond the charging party's control. See, e.g., Sabol v. N. Mich. Univ., 9 OCAHO no. 1107, 4-5 (2004). Section 44.302 Investigation Paragraph (a) would be revised to describe more broadly the means by which the Special Counsel may undertake an investigation of possible unfair immigration-related employment practices, including the authority to solicit testimony as necessary. New paragraph (b) would authorize the Special Counsel to require any person or other entity to present Forms I-9 for inspection. The Immigration and Nationality Act expressly provides the Special Counsel with authority to inspect Forms I-9. See 8 U.S.C. 1324a(b)(3). New paragraph (c) would be substantially similar to existing paragraph (b), but would broaden the list of items that an entity or person must permit the Special Counsel to access. New paragraph (d) would codify the preservation obligations of a respondent that is the subject of an investigation by the Special Counsel. Such obligations are necessary to ensure that the Special Counsel's right to access and examine evidence is preserved. See id. 1324b(f)(2). In addition, these obligations are reasonable and appropriate in light of the Special Counsel's authority to seek a subpoena requiring the production of relevant evidence. Id. Finally, since at least 2006, all entities subject to an investigation by the Special Counsel have been instructed in writing, at the outset of the investigation, to preserve relevant documents. These obligations are also consistent with ``litigation hold'' requirements under the Federal Rules of Civil Procedure. See, e.g., Fed. R. Civ. P. 16(b)(3)(B)(iii), 26(b)(5)(B), 45(e)(2)(B). Section 44.303 Determination Paragraph (a) would be revised and simplified. Paragraph (b) would be revised to more clearly set forth the time frame for the Special Counsel to issue letters of determination. Paragraph (c) would be revised to replace a reference to the former Immigration and Naturalization Service with the DHS, in accordance with the HSA. Paragraph (d) would be revised to clarify that the Special Counsel is not bound by the 90-day statutory time limit on filing a complaint that is applicable to individuals filing private actions. The only statutory time limit on the Special Counsel's authority to file a complaint based on a charge is contained in 8 U.S.C. 1324b(d)(3), entitled ``Time limitations on complaints,'' and states that ``[n]o complaint may be filed respecting any unfair immigration-related employment practice occurring more than 180 days prior to the date of the filing of the charge with the Special Counsel.'' The 90-day statutory time limit, in contrast, is contained in 8 U.S.C. 1324b(d)(2), entitled ``Private actions,'' and states that ``the person making the charge may (subject to paragraph (3)) file a complaint directly before such a judge within 90 days after the date of receipt of the notice.'' The ``Private actions'' provision makes clear that the Special Counsel has a right to ``investigate the charge or to bring a complaint . . . during such 90-day period.'' Id. Nothing in the statute explicitly states that the Special Counsel is subject to that 90-day limit, however, or prohibits the Special Counsel's office from continuing to investigate a charge or from filing its own complaint based on a charge even after the 90-day period for a charging party to file a private complaint has run. Relevant administrative decisions interpreting section 1324b support the conclusion that the Special Counsel is not bound by the statutory time limits that are applicable to individuals filing private actions. See, e.g., United States v. Agripac, Inc., 8 OCAHO no. 1028, 399, 404 (1999) (stating that section 1324b ``does not set out in terms any [[Page 53970]] particular time within which the Special Counsel must file a complaint before an administrative law judge''); United States v. Gen. Dynamics Corp., 3 OCAHO no. 517, 1121, 1156 (1993) (``The statute contains no time limitations on the Special Counsel's authority to conduct independent investigations or to subsequently file complaints based on such investigations.''). The Special Counsel's position is also consistent with the Supreme Court's interpretation of a similar provision in Title VII of the 1964 Civil Rights Act. See Occidental Life Ins. Co. of Calif. v. EEOC, 432 U.S. 355, 361 (1977) (holding that the EEOC is not subject to a complaint-filing deadline where the statutory language does not explicitly contain such a deadline and the legislative history does not support it). Given that section 1324b is modeled after Title VII--with similar charge-filing procedures and virtually identical timetables--the Supreme Court's ruling on this issue is highly instructive. See Sodhi, 10 OCAHO no. 1127 at 7-8. The Special Counsel's authority to file a complaint based on a charge is, however, subject to some time limits. Similar to the EEOC, the Special Counsel is bound by equitable limits on the filing of a complaint. See EEOC v. Propak Logistics, Inc., 746 F.3d 145 (4th Cir. 2014). In addition, the Special Counsel must comply with the five-year statutory time limit in 28 U.S.C. 2462 for bringing actions to impose civil penalties. Section 44.304 Special Counsel Acting on Own Initiative Paragraph (a) sets forth the process for the Special Counsel to conduct an investigation on his or her own initiative. This paragraph would be revised to conform with the Special Counsel's existing practice of notifying a respondent by certified mail of an investigation opened under this paragraph. Comments addressing whether the use of certified mail is effective are encouraged. For commenters who believe another method is preferable (such as regular mail or regular mail with delivery tracking), comments explaining why another method is preferable are also encouraged. Paragraph (b) would be revised to make the time frame for the Special Counsel to bring a complaint based on an investigation opened on the Special Counsel's own initiative pursuant to 8 U.S.C. 1324b(d)(1) and 28 CFR 44.304(a) consistent with the statutory text. The statutory text can be reasonably read to provide no time limit for the Special Counsel to file a complaint. United States v. Fairfield Jersey, Inc., 9 OCAHO no. 1069, 5 (2001) (acknowledging the absence of a statutory time limitation for the filing of a complaint arising out of an independent investigation). The statute provides only that the Special Counsel's authority to file a complaint based on such investigations be ``subject to'' 8 U.S.C. 1324b(d)(3), which in turn specifies that ``[n]o complaint may be filed respecting any unfair immigration-related employment practice occurring more than 180 days prior to the date of the filing of the charge with the Special Counsel.'' 8 U.S.C. 1324b(d)(1), (3) (emphasis added). Where the Special Counsel is conducting an investigation on his or her own initiative, no ``charge'' has been filed. The most reasonable application of 8 U.S.C. 1324b(d)(3) in that circumstance, therefore, is that the Special Counsel may not file a complaint unless an investigation on the Special Counsel's own initiative pursuant to 8 U.S.C. 1324b(d)(1) was opened within 180 days of the last known act of discrimination, as the opening of the Special Counsel's investigation is the nearest equivalent to the filing of a charge. The current regulations require the Special Counsel to file a complaint ``where there is reasonable cause to believe that an unfair immigration-related employment practice has occurred within 180 days from the date of the filing of the complaint.'' 28 CFR 44.304(a) (emphasis added). That requirement unnecessarily restricts the Special Counsel's enforcement authority and is not required by the language of the statute. While the Special Counsel and respondents have entered into stipulations to extend the complaint-filing date in circumstances when the Special Counsel requires more time to conduct an investigation under 8 U.S.C. 1324b(d)(1) or to facilitate settlement discussions, it is appropriate to revise the regulations to better accord with the statutory language. Similar to the EEOC, the Special Counsel is bound by equitable limits on the filing of a complaint. Propak Logistics, 746 F.3d 145. In addition, the Special Counsel must comply with the five-year statutory time limit for bringing actions to impose civil penalties. 28 U.S.C. 2462. Section 44.305 Regional Offices The proposed rule would amend this section to conform its language to 8 U.S.C. 1324b(c)(4). Public Participation Please note that all comments received are considered part of the public record and are made available for public inspection online at http://www.regulations.gov. The information made available includes personal identifying information (such as name and address) voluntarily submitted by the commenter. If you want to submit personal identifying information (such as your name and address) as part of your comment, but do not want it to be posted online, you must include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of your comment. You also must locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted. If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph of your comment. You also must prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov. Personal identifying information and confidential business information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. The docket file will be available for public inspection during normal business hours at 1425 New York Avenue, Suite 9000, Washington, DC 20005. Upon request, individuals who require assistance to review comments will be provided with appropriate aids such as readers or print magnifiers. If you wish to inspect the agency's public docket file in person, please see the FOR FURTHER INFORMATION CONTACT paragraph above to schedule an appointment. Copies of this rule may be obtained in alternative formats (large print, Braille, audio tape, or disc), upon request, by calling DeJuana Grant at (202) 616-5594. TTY/TDD callers may dial toll-free (800) 237- 2515 to obtain information or request materials in alternative formats. Regulatory Procedures Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) The rule has been drafted and reviewed in accordance with Executive [[Page 53971]] Order 12866 (Sept. 30, 1993), and Executive Order 13563 (Jan. 18, 2011). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits (while recognizing that some benefits and costs are difficult to quantify), reducing costs, harmonizing rules, and promoting flexibility. Under Executive Order 12866, the Department must determine whether a regulatory action is ``significant'' and, therefore, subject to the requirements of the Executive Order and Office of Management and Budget (OMB) review. Section 3(f) of Executive Order 12866 defines a ``significant regulatory action'' as any regulatory action that is likely to result in a rule ``that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.'' The Department has determined that the proposed rule is not an economically significant regulatory action under section 3(f)(1) of Executive Order 12866 because the Department estimates that its annual economic impact will be a one-time, first-year-only cost of $12.3 million--far less than $100 million. The Department has quantified and monetized the costs of the proposed rule over a period of 10 years (2016 to 2025) to ensure that its estimate captures all major benefits and costs, but has determined that all quantifiable costs will only be incurred during the first year after the regulations are implemented. Because the Department was unable to quantify the benefits of the proposed rule due to data limitations, the benefits are described qualitatively. When summarizing the costs of specific provisions of the proposed rule, the Department presents the 10-year present value of the proposed rule requirements. The Department considered the following factors when measuring the proposed rule's impact: (a) Employers familiarizing themselves with the rule, (b) employers reviewing and revising their employment eligibility verification policy, and (c) employers and employees viewing training webinars. The largest first-year cost is the cost employers would incur to review and revise their employment eligibility verification policies, which is $7,840,566. The next largest cost is the cost employers would incur to familiarize themselves with the rule, which is $4,448,548. The economic analysis presented below covers all employers with four or more employees, consistent with the statute's requirement that a ``person or entity'' have more than three employees to fall within OSC's jurisdiction for citizenship status and national origin discrimination in hiring, firing, and recruitment or referral for a fee. 8 U.S.C. 1324(a)(2). In the following sections, the Department first presents a subject- by-subject analysis of the costs of the proposed rule. The Department then presents the undiscounted 10-year total cost ($12.3 million) and a discussion of the expected benefits of the proposed rule. The costs are incurred entirely in the first year; thus, they are not discounted. The Department did not identify any transfer payments associated with the provisions of the rule. Transfer payments, as defined by OMB Circular A-4, are ``monetary payments from one group to another that do not affect total resources available to society.'' OMB Circular A-4 at 38 (Sept. 17, 2003). Transfer payments are associated with a distributional effect but do not result in additional costs or benefits to society. In the subject-by-subject analysis, the Department presents the labor and other costs for each provision of the proposed rule. Exhibit 1 displays the labor categories that are expected to experience an increase in level of effort (workload) due to the proposed rule. To estimate the cost, the Department multiplied each labor category's hourly compensation rate by the level of effort. The Department used wage rates from the Mean Hourly Wage Rate calculated by the Bureau of Labor Statistics.\1\ Wage rates are adjusted using a loaded wage factor to reflect total compensation, which includes health and retirement benefits. The loaded wage factor was calculated as the ratio of average total compensation to average wages in 2014, which resulted in 1.43 for the private sector.\2\ The Department then multiplied the loaded wage factor by each labor category's wage rate to calculate an hourly compensation rate. --------------------------------------------------------------------------- \1\ Bureau of Labor Statistics, May 2014 National Occupational Employment and Wage Estimates: United States (Mar. 25, 2015), http://www.bls.gov/oes/current/oes_nat.htm. \2\ The Department calculated average total compensation by taking the average of the cost of total compensation for all workers in December, September, June, and March of 2014 ((31.32 + 30.32 + 30.11 + 29.99)/4 = 30.44), and calculated average wages by taking the average of the cost of wages and salaries for those employees in each of those four months ((21.72 + 21.18 + 21.02 + 20.96)/4 = 21.22). See BLS, News Release, Employer Costs for Employee Compensation--December 2014, Table 5 (Mar. 11, 2015); BLS, News Release, Employer Costs for Employee Compensation--September 2014, Table 5 (Dec. 10, 2014); BLS, News Release, Employer Costs for Employee Compensation--June 2014, Table 5 (Sept. 10, 2014); BLS, News Release, Employer Costs for Employee Compensation--March 2014, Table 5 (June 11, 2014). (Each of these news releases is available at http://www.bls.gov/schedule/archives/ecec_nr.htm.) The Department then calculated the loaded wage factor by taking the ratio of average total compensation to average total wages (30.44/21.22 = 1.43). Exhibit 1--Calculation of Hourly Compensation Rates ---------------------------------------------------------------------------------------------------------------- Hourly Position Average hourly Loaded wage compensation wage \a\ factor \b\ rate c = a x b ---------------------------------------------------------------------------------------------------------------- Human Resources Manager......................................... $54.88 1.43 $78.4784 Attorney........................................................ 64.17 .............. 91.7631 ---------------------------------------------------------------------------------------------------------------- [[Page 53972]] 1. Subject-by-Subject Analysis a. Employers Familiarize Themselves With the Rule During the first year of the rule, employers with a developed human resources practice would need to read and review the rule to learn about the new requirements. The Department determined that no costs would be incurred by employers to familiarize themselves with the rule in years two through ten because (1) the cost for an existing employer to familiarize itself with the rule if it delays doing so until a subsequent year is already incorporated into the first-year cost calculations; and (2) for employers that are newly created in years two through ten, the cost of familiarization is the same as exists under the current regulations and, therefore, there is no incremental cost. Employers would incur labor cost to familiarize themselves with the new rule. To estimate the labor cost for this provision, the Department first estimated the number of employers that would need to familiarize themselves with the proposed rule by relying on the number of organizational members in the Council for Global Immigration (CGI) and the Society for Human Resource Management (SHRM).\3\ The Department used the number of organizational members in these two organizations as a proxy for the number of employers with a developed human resources practice that can be expected to institutionalize the regulatory changes. The Department acknowledges the possible overlap between SHRM and CGI members. The Department's analysis model therefore likely overestimates, to some extent, the number of entities (and thus, the costs) by assuming that an entity is a member of either SHRM or CGI, but not both. --------------------------------------------------------------------------- \3\ The Department obtained the number of individual and organizational members in CGI and the number of individual members of SHRM directly from these two organizations. Data on the number of organizational members of SHRM was not available. To estimate the number of organizational members in SHRM, the Department applied the same ratio of organizational members (230) to individual members (1,100) in CGI to the number of individual members in SHRM (270,000), which results in 56,455 organizational members (270,000 x 230/1,100). The Department added the number of organizational members in CGI (230) and SHRM (56,455) to estimate the number of organizational members in the analysis (56,685), which serves as a proxy for the number of employers that would need to take action because of the proposed rule. --------------------------------------------------------------------------- The Department then multiplied the estimated number of employers by the assumed number of human resources (HR) managers per employer, the time required to read and review the new rule, and the hourly compensation rate. The Department estimated this one-time cost to be $4,448,548.\4\ --------------------------------------------------------------------------- \4\ The Department estimated the cost of this review by multiplying the estimated number of employers (56,685) by the number of HR managers per employer (1), the time needed to read and review the rule (1 hour), and the hourly compensation rate ($78.4784). This calculation yields a labor cost of $4,448,548. --------------------------------------------------------------------------- b. Employers Review and Revise Employment Eligibility Verification Policies The proposed rule would require some employers to revise their employment eligibility verification policies. Although all U.S. employers must ensure that a Form I-9 is properly completed for each individual they hire for employment in the United States to verify the individual's identity and employment authorization in accordance with their obligations under 8 U.S.C. 1324a, only a subset of employers has detailed written policies addressing compliance with section 1324b. The Department assumed that these employers save their policies in an electronic format that can be readily modified. For the policy revisions, employers would complete a simple ``search-and-replace'' to update the agency's name and possibly replace the term ``documentation abuse(s)'' with ``unfair documentary practice(s).'' Only the very limited number of those employers that have detailed written employment eligibility policies would need to make additional modifications to their policies. The Department estimated costs only for those employers that have written employment eligibility verification policies and that would be expected to review their policies and make changes as needed. The time involved would depend on the changes employers need to make and how many sections of the policy would need to be modified. Employers with policies for verifying employment eligibility (and possibly employers with hiring or termination policies, even if they lack policies for verifying employment eligibility) might conduct a front-to-back review of their policies to determine whether any additional changes are needed. These changes and reviews would represent an upfront, one-time cost to employers. The Department estimates this cost as the sum of the cost of revising the policies by making word replacements; the cost, for some employers, of making additional changes beyond word replacements; and the cost of conducting a front-to-back review of the employment eligibility verification policies. To estimate the labor cost for making word replacements to the employment verification policies, the Department first estimated the number of employers that would make these revisions because of the proposed rule by relying on the number of organizational members in the SHRM and CGI. The Department then multiplied the estimated number of employers by the assumed number of HR managers per employer, the time required to make the revisions, and the hourly compensation rate.\5\ This calculation yields $1,112,137 in labor costs related to revising employment eligibility verification policies in the first year of the rule. --------------------------------------------------------------------------- \5\ To estimate the cost of making revisions, the Department multiplied the estimated number of employers (56,685) by the assumed number of HR managers per employer (1), the hourly compensation rate ($78.4784), and the time required to make the revisions (0.25 hours). This calculation results in a cost of $1,112,137. --------------------------------------------------------------------------- To estimate the additional cost to those employers making changes beyond word replacements in the first year of the proposed rule, the Department assumed that 5 percent of employers (i.e., the number of organizational members in CGI and SHRM) would make these changes. The Department then multiplied the number of employers that would make these additional changes by the assumed number of HR managers per employer, the time required to make the changes, and the hourly compensation rate. This calculation yields $55,607 in labor costs in the first year of the rule.\6\ --------------------------------------------------------------------------- \6\ To estimate the cost of making changes beyond word replacements, the Department first calculated the number of employers that would make these changes. The Department obtained the number of employers that would make these additional changes by multiplying the number of employers (56,685) by the assumed percentage of employers that would make these additional changes (5%). This calculation yields the number 2,834.25. The Department then multiplied that number of employers (2,834.25) by the number of HR managers per employer (1), the hourly compensation rate ($78.4784), and the time required to make the changes (0.25 hours). This calculation results in a cost of $55,607. --------------------------------------------------------------------------- To estimate the cost of conducting a front-to-back review of the policies for verifying employment eligibility (or hiring and termination policies), the Department multiplied the number of employers (i.e., the number of organizational members in CGI and SHRM) by the number of HR managers per employer, the time required for a review, and the hourly compensation rate. This calculation yields $6,672,822 in labor costs in the first year of the rule.\7\ --------------------------------------------------------------------------- \7\ To estimate the cost of reviewing the policies, the Department assumed, out of an abundance of caution, that all of the employers affiliated with CGI or SHRM would dedicate one HR manager to conduct a front-to-back review of their policies. Accordingly, the Department multiplied the number of employers (56,685) by the assumed number of HR managers per employer (1), the hourly compensation rate ($78.4784), and the time required to review the policies (1.5 hours). This calculation results in a cost of $6,672,822. --------------------------------------------------------------------------- [[Page 53973]] In total, the one-time costs to employers to revise the policies for verifying employment eligibility by making word replacements, to make additional changes beyond word replacements in the case of some employers, and to conduct a front-to-back review of those policies, are estimated to be $7,840,566 during the first year of rule implementation. c. Employers and Employees View Training Webinars During the first year of implementation, as a part of the Department's ongoing educational webinar series, the Department expects to schedule three live, optional employer training webinars per month and one live, optional advocate/employee training webinar per month to assist employers, employees, attorneys, and advocates in understanding the changes resulting from the rule. These live one-hour training webinars would cover the full spectrum of employer obligations and employee rights under the statute. The Department also expects to create three one-hour recorded webinars: One for employers and their representatives and two for employees and their representatives (one in English and one in Spanish). The Department anticipates that participation will occur mostly through viewings of the one-hour recorded webinars. The recorded training webinars developed to explain the post-rule regulatory and statutory obligations and rights would eventually replace the Department's existing live webinars. Therefore, the Department has calculated these costs for employers, employees, and their representatives to be incurred in the first year when learning about the changes, whether through a live or recorded training webinar. Thereafter, newly-created employers would be viewing training webinars instead of (not in addition to) viewing current webinars, with no incremental costs incurred. To estimate the cost to employers of viewing training webinars, the Department summed the labor costs for those viewing live webinars and the labor costs for those viewing recorded webinars. To estimate the number of employers viewing the live webinars, the Department used statistics on the average number of employer participants in live webinars. To estimate the number of employers viewing a recorded webinar, the Department used data on the number of viewings of the Department's educational videos pertaining to employer obligations under 8 U.S.C. 1324b that are posted on YouTube. Both estimates assume a 15-percent increase in participation following the implementation of the proposed rule.\8\ The Department multiplied the number of employers expected to view a webinar (represented by their HR managers) by the hourly compensation rate, the time required to view a webinar, and the number of training webinars in the first year for both live and recorded webinars. The total one-time cost to employers for viewing live and recorded webinars is estimated to be $26,447.\9\ --------------------------------------------------------------------------- \8\ On average, 44.7 individuals participate in live webinars for employers. The Department assumed that there would be a 15- percent increase in the number of participants following the implementation of the proposed rule. Thus, the Department estimated costs for seven employers (i.e., 15 percent of the 44.7 individuals) related to viewing the live webinar. On average, 567 individuals have viewed each of the educational YouTube videos. Thus, the Department estimated costs for 85 employers (i.e., 15 percent of the 567 individuals) related to viewing the recorded webinar. \9\ The Department estimated the cost of viewing the live webinars by taking the product of the number of employer representatives (HR managers) viewing the live webinar (7), the hourly compensation rate ($78.4784), the number of webinars per year (36), and the time required to view the webinar (1 hour). This yielded a cost of $19,777. The Department then estimated the cost of viewing the recorded webinars by taking the product of the number of employer representatives (HR managers) viewing the recorded webinars (85), the hourly compensation rate ($78.4784), the number of webinars (1), and the time required to view the webinar (1 hour). This yielded a cost of $6,671. The total cost of viewing webinars was estimated by taking the sum of the cost of viewing live webinars and the cost of viewing recorded webinars, to obtain a total cost of $26,447. --------------------------------------------------------------------------- To estimate the cost to employees of viewing live training webinars, the Department used existing statistics on the average participation of employees. To estimate the cost to employees of viewing recorded webinars, the Department used the employer-to-employee ratio of participation for the live webinars and applied it to the number of views of the Department's educational videos on YouTube. Both estimates assume a 5-percent increase in participation following the implementation of the proposed rule.\10\ These estimates are only related to the webinars recorded in English, since the Department does not expect an increase in the number of views of the Spanish webinars following the implementation of the rule. In the Department's experience, in many cases the live Spanish webinars that have been offered have been canceled due to low turnout. In other cases, the Spanish webinars proceeded but with a turnout of fewer than ten participants, who are typically employees. The Department multiplied the number of employees expected to view webinars (represented by their attorneys) by the hourly compensation rate, the time required to view a webinar, and the number of training webinars in the first year for both live and recorded webinars. The Department estimates a total and aggregate one-time cost of $1,835 for viewing live and recorded advocate/employee webinars.\11\ --------------------------------------------------------------------------- \10\ On average, 12 individuals participate in live webinars for employees. The Department assumed that there would be a 5-percent increase in individuals following the implementation of the proposed rule. Thus, the Department estimated costs for one employee (i.e., 5 percent of the 12 individuals) related to viewing the live webinars. On average, 567 individuals viewed the educational YouTube videos. The Department assumed the same proportion of employees-to-employers viewing the live webinars (0.268 = 12/44.7) would view the recorded webinars. This number would translate to 152 employees or employee advocates viewing the educational YouTube videos. Thus, the Department estimated costs for 8 employees (i.e., 5 percent of the 152 individuals) related to viewing the recorded webinar. \11\ The Department estimated the cost of viewing live webinars by taking the product of the number of employee representatives (captured by the attorney occupational category) viewing the live webinar (1), the hourly compensation rate ($91.7631), the number of webinars (12), and the time required to view the webinar (1 hour). This resulted in a cost of $1,101. The Department then estimated the cost of viewing recorded webinars by taking the product of the number of employee representatives, assumed to be an attorney, viewing the recorded webinar (8), the hourly compensation rate ($91.7631), the number of webinars (1), and the time required to view the webinar (1 hour). This resulted in a cost of $734. The total cost of viewing webinars was estimated by taking the sum of the cost of viewing live webinars and the cost of viewing recorded webinars, to obtain a total cost of $1,835. --------------------------------------------------------------------------- Accordingly, the total one-time cost to employers and employees of viewing live and recorded webinars would be $28,282. d. Benefits of the Proposed Rule The Department was not able to quantify the benefits of the proposed rule due to data limitations, such as an inability to calculate the amount of time employers would save from the proposed rule. Several benefits to society would result, however, from the proposed rule, including the following: Helping employers understand the law more efficiently. The proposed regulatory changes would reduce the time and effort necessary for employers to understand their statutory obligations by incorporating well-established administrative decisions, the Department's long- standing positions, and statutory amendments into the regulations. [[Page 53974]] Increasing public access to government services. The proposed regulatory changes would streamline the charge-filing process for individuals alleging discrimination. Eliminating public confusion regarding two offices in the Federal Government with the same name. The proposed regulatory changes would reflect the change in the name of the office charged with enforcing 8 U.S.C. 1324b from the Office of Special Counsel for Immigration-Related Unfair Employment Practices to the Immigrant and Employee Rights Section, thereby eliminating delays in processing submissions that currently occur due to confusion associated with having two Offices of Special Counsel in the Federal Government.\12\ --------------------------------------------------------------------------- \12\ In addition to the Official of Special Counsel for Immigration Related Unfair Employment Practices established by 28 CFR 0.53, Congress has established an Office of Special Counsel charged with protecting employees, former employees, and applicants for employment from prohibited personnel practices, among other functions. See 5 U.S.C. 1211-1212. --------------------------------------------------------------------------- Regulatory Flexibility Act and Executive Order 13272 (Consideration of Small Entities) The Regulatory Flexibility Act (RFA), 5 U.S.C. 603, and Executive Order 13272 (Aug. 13, 2002), require agencies to prepare a regulatory flexibility analysis of the anticipated impact of a regulation on small entities. The RFA provides that the agency is not required to prepare such an analysis if an agency head certifies, along with a statement providing the factual basis for such certification, that the regulation is not expected to have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). Based on the following analysis, the Attorney General certifies that this rule will not have a significant economic impact on a substantial number of small entities. The Department's analysis focused on small businesses or nonprofits with 20 to 499 employees. The Department assumed that small businesses or nonprofits with fewer than 20 employees will not have a detailed written policy addressing compliance with 8 U.S.C. 1324b. The Department assumed that, in total, 56,685 entities will be affected by the proposed rule. Of those 56,685 affected entities, the Department estimated that 28,343 entities would be small employers.\13\ Dividing the affected population (28,343) by the total number of small businesses and non-profits (664,094), the Department estimates that 4.3 percent of small entities would be impacted by the proposed rule.\14\ --------------------------------------------------------------------------- \13\ According to the SHRM Web site, approximately 50 percent of the organization's members work in organizations with fewer than 500 employees. See SHRM, About the Society for Human Resource Management, http://www.shrm.org/about/pages/default.aspx. Taking 50 percent of the total estimated number of members in SHRM and CGI (56,685) results in 28,343 small entities. \14\ The Department assumed that the total number of small businesses and non-profits is equal to the number of firms with 20 to 499 employees. Because the U.S. Census Bureau did not identify the number of firms with 20 to 499 employees in 2013, the most recent year for which data is available, the Department calculated the estimated number of firms with 20 to 499 employees in that year by calculating the number of establishments with 20 to 499 employees in 2013 and dividing it by the ratio of small establishments to small firms in 2012. To perform that calculation, the Department first determined the estimated number of firms with 20 to 99 employees in 2013 by (1) adding the number of establishments with 20 to 49 employees in 2013 and the number of establishments with 50 to 99 employees in 2013 (652,075 + 221,192 = 873,267); (2) dividing the number of establishments with 20 to 99 employees in 2012 by the number of firms with 20 to 99 employees in 2012 (687,272/494,170 = 1.39076); and (3) dividing the first number by the second (873,267/ 1.39076 = 627,906). The Department then determined the estimated number of firms with 100 to 499 employees in 2013 by (1) adding the number of establishments with 100 to 249 employees in 2013 and the number of establishments with 250 to 499 employees in 2013 (124,411 + 31,843 = 156,254); (2) dividing the number of establishments with 100 to 499 employees in 2012 by the number of firms with 100 to 499 employees in 2012 (360,207/83,423 = 4.3178); and (3) dividing the first number by the second (156,254/4.3178 = 36,188). Last, to determine the estimated number of firms with 20 to 499 employees in 2013, the Department added the estimated number of firms with 20 to 99 employees in 2013 and the estimated number of firms with 100 to 499 employees in 2013 (627,906 + 36,188 = 664,094). See U.S. Census Bureau, 2013 County Business Patterns (NAICS), http://censtats.census.gov; U.S. Census Bureau, 2012 Statistics of U.S. Businesses, Number of Firms, Number of Establishments, Employment, Annual Payroll, and Estimated Receipts by Enterprise Employment Size for the United States and States, Totals: 2012; http://www.census.gov/econ/susb/historical_data.html. --------------------------------------------------------------------------- The Department estimated the costs of (a) familiarizing staff with the new requirements in the rule, (b) reviewing and revising their employment eligibility verification policy, and (c) viewing a training webinar. The analysis focused on the first year of rule implementation, when all costs of the proposed rule are incurred. The Department estimates that the total one-year cost per small employer is $314.\15\ The Department has determined that the yearly cost of $314 will not be a significant economic impact on any of the affected small entities. Therefore, the Department has certified that the proposed rule will not have a significant impact on a substantial number of small entities. --------------------------------------------------------------------------- \15\ The Department estimated a cost of $314 per small entity by taking the sum of the cost per small entity of each of the proposed changes to the rule. This includes the following costs: Familiarization with the rule ($78), revising employment eligibility verification policies by making word replacements ($20), making additional changes beyond word replacements ($20), conducting a front-to-back review of the employment eligibility verification policies ($118), and viewing the training webinar ($78). --------------------------------------------------------------------------- Paperwork Reduction Act These regulations contain no information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 8 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Unfunded Mandates Reform Act of 1995 For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, this proposed rule does not include any Federal mandate that may result in excess of $100 million in expenditures by State, local, and tribal governments in the aggregate or by the private sector. Executive Order 13132 (Federalism) The agency has reviewed this proposed rule in accordance with Executive Order 13132 (Aug. 4, 1999), and has determined that it does not have ``federalism implications.'' This proposed rule would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) This proposed rule does not have tribal implications under Executive Order 13175 (Nov. 6, 2000) that would require a tribal summary impact statement. The proposed rule would not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. [[Page 53975]] Executive Order 13045 (Protection of Children) This proposed rule is not a covered regulatory action under Executive Order 13045 (Apr. 21, 1997). The proposed rule would have no environmental health risk or safety risk that may disproportionately affect children. Executive Order 12630 (Constitutionally Protected Property Rights) This proposed rule does not have takings implications under Executive Order 12630 (Mar. 15, 1988). The proposed rule would not effect a taking or require dedications or exactions from owners of private property. Executive Order 12988 (Civil Justice Reform Analysis) This proposed rule was drafted and reviewed in accordance with Executive Order 12988 (Feb. 5, 1996), and will not unduly burden the Federal court system. Complaints respecting unfair immigration-related employment practices are heard in the first instance by the Department of Justice, Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer. List of Subjects 28 CFR Part 0 Authority delegations (Government agencies), Government employees, Organization and functions (Government agencies), Privacy, Reporting and recordkeeping requirements, Whistleblowing. 28 CFR Part 44 Administrative practice and procedure, Equal employment opportunity, Immigration. For the reasons stated in the preamble, the Attorney General proposes to revise 28 CFR parts 0 and 44 as follows: PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE 0 1. The authority citation for part 0 continues to read as follows: Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519. 0 2. Section 0.53 is revised to read as follows: Sec. 0.53 Immigrant and Employee Rights Section. (a) The Immigrant and Employee Rights Section shall be headed by a Special Counsel for Immigration-Related Unfair Employment Practices (``Special Counsel''). The Special Counsel shall be appointed by the President for a term of four years, by and with the advice and consent of the Senate, pursuant to section 274B of the Immigration and Nationality Act (INA), 8 U.S.C. 1324b. The Immigrant and Employee Rights Section shall be part of the Civil Rights Division of the Department of Justice, and the Special Counsel shall report directly to the Assistant Attorney General, Civil Rights Division. (b) In carrying out the Special Counsel's responsibilities under section 274B of the INA, the Special Counsel is authorized to: (1) Investigate charges of unfair immigration-related employment practices filed with the Immigrant and Employee Rights Section and, when appropriate, file complaints with respect to those practices before specially designated administrative law judges within the Office of the Chief Administrative Hearing Officer, Executive Office for Immigration Review, U.S. Department of Justice; (2) Intervene in proceedings involving complaints of unfair immigration-related employment practices that are brought directly before such administrative law judges by parties other than the Special Counsel; (3) Conduct, on the Special Counsel's own initiative, investigations of unfair immigration-related employment practices and, where appropriate, file complaints with respect to those practices before such administrative law judges; (4) Conduct, handle, and supervise litigation in U.S. District Courts for judicial enforcement of subpoenas or orders of administrative law judges regarding unfair immigration-related employment practices; (5) Initiate, conduct, and oversee activities relating to the dissemination of information to employers, employees, and the general public concerning unfair immigration-related employment practices; (6) Establish such regional offices as may be necessary, in accordance with regulations of the Attorney General; (7) Perform such other functions as the Assistant Attorney General, Civil Rights Division may direct; and (8) Delegate to any subordinate any of the authority, functions, or duties vested in the Special Counsel. 0 3. Revise part 44 to read as follows: PART 44--UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES Sec. 44.100 Purpose. 44.101 Definitions. 44.102 Computation of time. 44.200 Unfair immigration-related employment practices. 44.201 [Reserved]. 44.202 Counting employees for jurisdictional purposes. 44.300 Filing a charge. 44.301 Receipt of charge. 44.302 Investigation. 44.303 Determination. 44.304 Special Counsel acting on own initiative. 44.305 Regional offices. Authority: 8 U.S.C. 1103(a)(1), (g), 1324b. Sec. 44.100 Purpose. The purpose of this part is to implement section 274B of the Immigration and Nationality Act (8 U.S.C. 1324b), which prohibits certain unfair immigration-related employment practices. Sec. 44.101 Definitions. For purposes of 8 U.S.C. 1324b and this part: (a) Charge means a written statement in any language that-- (1) Is made under oath or affirmation; (2) Identifies the charging party's name, address, and telephone number; (3) Identifies the injured party's name, address, and telephone number, if the charging party is not the injured party; (4) Identifies the name and address of the person or other entity against whom the charge is being made; (5) Includes a statement sufficient to describe the circumstances, place, and date of an alleged unfair immigration-related employment practice; (6) Indicates whether the basis of the alleged unfair immigration- related employment practice is discrimination based on national origin, citizenship status, or both; or involves intimidation or retaliation; or involves unfair documentary practices; (7) Indicates the citizenship status of the injured party; (8) Indicates, if known, the number of individuals employed on the date of the alleged unfair immigration-related employment practice by the person or other entity against whom the charge is being made; (9) Is signed by the charging party and, if the charging party is neither the injured party nor an officer of the Department of Homeland Security, indicates that the charging party has the authorization of the injured party to file the charge; (10) Indicates whether a charge based on the same set of facts has been filed with the Equal Employment Opportunity Commission, and if so, the specific office and contact person (if known); and (11) Authorizes the Special Counsel to reveal the identity of the injured or charging party when necessary to carry out the purposes of this part. [[Page 53976]] (b) Charging party means-- (1) An injured party who files a charge with the Special Counsel; (2) An individual or entity authorized by an injured party to file a charge with the Special Counsel that alleges that the injured party is adversely affected directly by an unfair immigration-related employment practice; or (3) An officer of the Department of Homeland Security who files a charge with the Special Counsel that alleges that an unfair immigration-related employment practice has occurred or is occurring. (c) Citizenship status means an individual's status as a U.S. citizen or national, or non-U.S. citizen, including the immigration status of a non-U.S. citizen. (d) Complaint means a written submission filed with the Office of the Chief Administrative Hearing Officer (OCAHO) under 28 CFR part 68 by the Special Counsel or by a charging party, other than an officer of the Department of Homeland Security, alleging one or more unfair immigration-related employment practices under 8 U.S.C. 1324b. (e) Discriminate as that term is used in 8 U.S.C. 1324b means the act of intentionally treating an individual differently from other individuals, regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility. (f) The phrase ``for purposes of satisfying the requirements of section 1324a(b),'' as that phrase is used in 8 U.S.C. 1324b(a)(6), means for the purpose of completing the employment eligibility verification form designated in 8 CFR 274a.2, or for the purpose of making any other efforts to verify an individual's employment eligibility, including the use of ``E-Verify'' or any other electronic employment eligibility verification program. (g) An act done ``for the purpose or with the intent of discriminating against an individual in violation of paragraph (1),'' as that phrase is used in 8 U.S.C. 1324b(a)(6), means an act of intentionally treating an individual differently based on national origin or citizenship status in violation of 8 U.S.C. 1324b(a)(1), regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility. (h) Hiring means all conduct and acts during the entire recruitment, selection, and onboarding process undertaken to make an individual an employee. (i) Injured party means an individual who claims to be adversely affected directly by an unfair immigration-related employment practice. (j) The phrase ``more or different documents than are required under such section,'' as that phrase is used in 8 U.S.C. 1324b(a)(6), includes any limitation on an individual's choice of acceptable documentation to present to satisfy the requirements of 8 U.S.C. 1324a(b). (k) Protected individual means an individual who-- (1) Is a citizen or national of the United States; (2) Is an alien who is lawfully admitted for permanent residence, other than an alien who-- (i) Fails to apply for naturalization within six months of the date the alien first becomes eligible (by virtue of period of lawful permanent residence) to apply for naturalization, or, if later, within six months after November 6, 1986; or (ii) Has applied on a timely basis, but has not been naturalized as a citizen within two years after the date of the application, unless the alien can establish that he or she is actively pursuing naturalization, except that time consumed in the Department of Homeland Security's processing of the application shall not be counted toward the two-year period; (3) Is an alien lawfully admitted for temporary residence under 8 U.S.C. 1160(a) or 8 U.S.C. 1255a(a)(1); (4) Is admitted as a refugee under 8 U.S.C. 1157; or (5) Is granted asylum under 8 U.S.C. 1158. (l) Recruitment or referral for a fee has the meaning given the terms ``recruit for a fee'' and ``refer for a fee,'' respectively, in 8 CFR 274a.1, and includes all conduct and acts during the entire recruitment or referral process. (m) Respondent means a person or other entity who is under investigation by the Special Counsel, as identified in the written notice required by Sec. 44.301(a) or Sec. 44.304(a). (n) Special Counsel means the Special Counsel for Immigration- Related Unfair Employment Practices appointed by the President under 8 U.S.C. 1324b, or a duly authorized designee. Sec. 44.102 Computation of time. When a time period specified in this part ends on a day when the Federal Government in Washington, DC is closed (such as on weekends and Federal holidays, or due to a closure for all or part of a business day), the time period shall be extended until the next full day that the Federal Government in Washington, DC is open. Sec. 44.200 Unfair immigration-related employment practices. (a)(1) General. It is an unfair immigration-related employment practice under 8 U.S.C. 1324b(a)(1) for a person or other entity to intentionally discriminate or to engage in a pattern or practice of intentional discrimination against any individual (other than an unauthorized alien) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment-- (i) Because of such individual's national origin; or (ii) In the case of a protected individual, as defined in Sec. 44.101(k), because of such individual's citizenship status. (2) Intimidation or retaliation. It is an unfair immigration- related employment practice under 8 U.S.C. 1324b(a)(5) for a person or other entity to intimidate, threaten, coerce, or retaliate against any individual for the purpose of interfering with any right or privilege secured under 8 U.S.C. 1324b or because the individual intends to file or has filed a charge or a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under that section. (3) Unfair documentary practices. It is an unfair immigration- related employment practice under 8 U.S.C. 1324b(a)(6) for-- (i) A person or other entity, for purposes of satisfying the requirements of 8 U.S.C. 1324a(b), either-- (A) To request more or different documents than are required under Sec. 1324a(b); or (B) To refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual; and (ii) To make such request or refusal for the purpose or with the intent of discriminating against any individual in violation of paragraph (1), regardless of whether such documentary practice is a condition of employment or causes economic harm to the individual. (b) Exceptions. (1) Paragraph (a)(1) of this section shall not apply to-- (i) A person or other entity that employs three or fewer employees; (ii) Discrimination because of an individual's national origin by a person or other entity if such discrimination is covered by 42 U.S.C. 2000e-2; or (iii) Discrimination because of citizenship status which-- (A) Is otherwise required in order to comply with law, regulation, or Executive order; or (B) Is required by Federal, State, or local government contract; or [[Page 53977]] (C) The Attorney General determines to be essential for an employer to do business with an agency or department of the Federal, State, or local government. (2) Notwithstanding any other provision of this part, it is not an unfair immigration-related employment practice for a person or other entity to prefer to hire an individual, or to recruit or refer for a fee an individual, who is a citizen or national of the United States over another individual who is an alien if the two individuals are equally qualified. Sec. 44.201 [Reserved]. Sec. 44.202 Counting employees for jurisdictional purposes. The Special Counsel will calculate the number of employees referred to in Sec. 44.200(b)(1)(i) by counting all part-time and full-time employees employed on the date that the alleged discrimination occurred. The Special Counsel will use the 20 calendar week requirement contained in Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e(b), for purposes of determining whether the exception of Sec. 44.200(b)(1)(ii) applies, and will refer to the Equal Employment Opportunity Commission charges of national origin discrimination that the Special Counsel determines are covered by 42 U.S.C. 2000e-2. Sec. 44.300 Filing a charge. (a) Who may file. Charges may be filed by: (1) Any injured party; (2) Any individual or entity authorized by an injured party to file a charge with the Special Counsel alleging that the injured party is adversely affected directly by an unfair immigration-related employment practice; or (3) Any officer of the Department of Homeland Security who alleges that an unfair immigration-related employment practice has occurred or is occurring. (b) Charges shall be filed within 180 days of the alleged occurrence of an unfair immigration-related employment practice. A charge is deemed to be filed on the date it is postmarked or the date on which the charging party otherwise delivers or transmits the charge to the Special Counsel. (c) Charges may be sent by: (1) U.S. mail; (2) Courier service; (3) Electronic or online submission; or (4) Facsimile. (d) No charge may be filed respecting an unfair immigration-related employment practice described in Sec. 44.200(a)(1)(i) if a charge with respect to that practice based on the same set of facts has been filed with the Equal Employment Opportunity Commission under title VII of the Civil Rights Act of 1964, unless the charge is dismissed as being outside the scope of such title. No charge respecting an employment practice may be filed with the Equal Employment Opportunity Commission under such title if a charge with respect to such practice based on the same set of facts has been filed under this section, unless the charge is dismissed as being outside the scope of this part. Sec. 44.301 Receipt of charge. (a) Within 10 days of receipt of a charge, the Special Counsel shall notify the charging party and respondent by certified mail, in accordance with paragraphs (b) and (c) of this section, of the Special Counsel's receipt of the charge. (b) The notice to the charging party shall specify the date on which the charge was received; state that the charging party, other than an officer of the Department of Homeland Security, may file a complaint before an administrative law judge if the Special Counsel does not do so within 120 days of receipt of the charge; and state that the charging party will have 90 days from the receipt of the letter of determination issued pursuant to Sec. 44.303(b) by which to file such a complaint. (c) The notice to the respondent shall include the date, place, and circumstances of the alleged unfair immigration-related employment practice. (d)(1) If a charging party's submission is found to be inadequate to constitute a complete charge as defined in Sec. 44.101(a), the Special Counsel shall notify the charging party that the charge is incomplete and specify what additional information is needed. (2) An incomplete charge that is later deemed to be complete under this paragraph is deemed filed on the date the initial but inadequate submission is postmarked or otherwise delivered or transmitted to the Special Counsel, provided any additional information requested by the Special Counsel pursuant to this paragraph is postmarked or otherwise provided, delivered or transmitted to the Special Counsel within 180 days of the alleged occurrence of an unfair immigration-related employment practice or within 45 days of the date on which the charging party received the Special Counsel's request for additional information, whichever is later. (3) Once the Special Counsel determines adequate information has been submitted to constitute a complete charge, the Special Counsel shall issue the notices required by paragraphs (b) and (c) of this section within 10 days. (e) In the Special Counsel's discretion, the Special Counsel may deem a submission to be a complete charge even though it is inadequate to constitute a charge as defined in Sec. 44.101(a). The Special Counsel may then obtain the additional information specified in Sec. 44.101(a) in the course of investigating the charge. (f) A charge or an inadequate submission referred to the Special Counsel by a federal, state, or local government agency appointed as an agent for accepting charges on behalf of the Special Counsel is deemed filed on the date the charge or inadequate submission was postmarked to or otherwise delivered or transmitted to that agency. Upon receipt of the referred charge or inadequate submission, the Special Counsel shall follow the applicable notification procedures for the receipt of a charge or inadequate submission set forth in this section. (g) The Special Counsel shall dismiss a charge or inadequate submission that is filed more than 180 days after the alleged occurrence of an unfair immigration-related employment practice, unless the Special Counsel determines that the principles of waiver, estoppel, or equitable tolling apply. Sec. 44.302 Investigation. (a) The Special Counsel may seek information, request documents and answers to written interrogatories, inspect premises, and solicit testimony as the Special Counsel believes is necessary to ascertain compliance with this part. (b) The Special Counsel may require any person or other entity to present Employment Eligibility Verification Forms (``Forms I-9'') for inspection. (c) The Special Counsel shall have reasonable access to examine the evidence of any person or other entity being investigated. The respondent shall permit access by the Special Counsel during normal business hours to such books, records, accounts, papers, electronic and digital documents, databases, systems of records, witnesses, premises, and other sources of information the Special Counsel may deem pertinent to ascertain compliance with this part. (d) A respondent, upon receiving notice by the Special Counsel that it is under investigation, shall preserve all evidence, information, and documents potentially relevant to any alleged unfair immigration- related employment practices, and shall suspend routine or [[Page 53978]] automatic deletion of all such evidence, information, and documents. Sec. 44.303 Determination. (a) Within 120 days of the receipt of a charge, the Special Counsel shall undertake an investigation of the charge and determine whether to file a complaint with respect to the charge. (b) If the Special Counsel determines not to file a complaint with respect to such charge by the end of the 120-day period, or decides to continue the investigation of the charge beyond the 120-day period, the Special Counsel shall, by the end of the 120-day period, issue letters to the charging party and respondent by certified mail notifying both parties of the Special Counsel's determination. (c) When a charging party receives a letter of determination issued pursuant to paragraph (b) of this section, the charging party, other than an officer of the Department of Homeland Security, may file a complaint directly before an administrative law judge in the Office of the Chief Administrative Hearing Officer (OCAHO) within 90 days after his or her receipt of the Special Counsel's letter of determination. The charging party's complaint must be filed with OCAHO as provided in 28 CFR part 68. (d) The Special Counsel's failure to file a complaint with respect to such charge with OCAHO within the 120-day period shall not affect the right of the Special Counsel to continue to investigate the charge or later to bring a complaint before OCAHO. (e) The Special Counsel may seek to intervene at any time in any proceeding brought by a charging party before OCAHO. Sec. 44.304 Special Counsel acting on own initiative. (a) The Special Counsel may, on the Special Counsel's own initiative, conduct investigations respecting unfair immigration- related employment practices when there is reason to believe that a person or other entity has engaged or is engaging in such practices, and shall notify a respondent by certified mail of the commencement of the investigation. (b) The Special Counsel may file a complaint with OCAHO when there is reasonable cause to believe that an unfair immigration-related employment practice has occurred no more than 180 days prior to the date on which the Special Counsel opened an investigation of that practice. Sec. 44.305 Regional offices. The Special Counsel, in accordance with regulations of the Attorney General, shall establish such regional offices as may be necessary to carry out the Special Counsel's duties. Dated: August 4, 2016. Loretta E. Lynch, Attorney General. [FR Doc. 2016-18957 Filed 8-12-16; 8:45 am] BILLING CODE 4410-13-P
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All communications received before the safety and management of IFR § 71.1 [Amended]
the specified closing date for comments operations at the airport, while ■ 2. The incorporation by reference in
will be considered before taking action preserving the navigable airspace for 14 CFR 71.1 of FAA Order 7400.9Z,
on the proposed rule. The proposal aviation. Airspace Designations and Reporting
contained in this notice may be changed Class E airspace designations are Points, dated August 6, 2015, and
in light of the comments received. A published in paragraph 6005 of FAA effective September 15, 2015, is
report summarizing each substantive Order 7400.9Z, dated August 6, 2015, amended as follows:
public contact with FAA personnel and effective September 15, 2015, which
concerned with this rulemaking will be is incorporated by reference in 14 CFR Paragraph 6005 Class E Airspace Areas
filed in the docket. Extending Upward From 700 Feet or More
71.1. The Class E airspace designations Above the Surface of the Earth.
Availability of NPRMs listed in this document will be
published subsequently in the Order. ANM OR E5 Albany, OR [Modified]
An electronic copy of this document
may be downloaded through the Albany Municipal Airport, OR
Regulatory Notices and Analyses (Lat. 44°38′16″ N., Long. 123°03′34″ W.)
Internet at http://www.regulations.gov.
Recently published rulemaking The FAA has determined that this That airspace extending upward from 700
regulation only involves an established feet above the surface, within a 6.7-mile
documents can also be accessed through radius of Albany Municipal Airport,
the FAA’s Web page at http:// body of technical regulations for which
beginning at the 158° bearing from the airport
www.faa.gov/airports_airtraffic/ frequent and routine amendments are
clockwise to the 022° bearing, thence to the
air_traffic/publications/ necessary to keep them operationally point of beginning, and that airspace 1.4
airspace_amendments/. current, is non-controversial and miles each side of the 230° bearing from the
You may review the public docket unlikely to result in adverse or negative airport extending from the 6.7-mile radius to
containing the proposal, any comments comments. It, therefore: (1) Is not a 8.5 miles southwest of the airport.
received, and any final disposition in ‘‘significant regulatory action’’ under Issued in Seattle, Washington, on August 5,
person in the Dockets Office (see the Executive Order 12866; (2) is not a 2016.
ADDRESSES section for the address and ‘‘significant rule’’ under DOT Sam Shrimpton,
phone number) between 9:00 a.m. and Regulatory Policies and Procedures
Acting Manager, Operations Support Group,
5:00 p.m., Monday through Friday, (44 FR 11034; February 26, 1979); and Western Service Center.
except federal holidays. An informal (3) does not warrant preparation of a [FR Doc. 2016–19116 Filed 8–12–16; 8:45 am]
docket may also be examined during regulatory evaluation as the anticipated BILLING CODE 4910–13–P
normal business hours at the Northwest impact is so minimal. Since this is a
Mountain Regional Office of the Federal routine matter that will only affect air
Aviation Administration, Air Traffic traffic procedures and air navigation, it
Organization, Western Service Center, DEPARTMENT OF JUSTICE
is certified that this rule, when
Operations Support Group, 1601 Lind promulgated, would not have a 28 CFR Parts 0 and 44
Avenue SW., Renton, WA 98057. significant economic impact on a
substantial number of small entities [CRT Docket No. 130; AG Order No. 3726–
Availability and Summary of 2016]
Documents Proposed for Incorporation under the criteria of the Regulatory
by Reference Flexibility Act. RIN 1190–AA71
This document proposes to amend Environmental Review
Standards and Procedures for the
FAA Order 7400.9Z, Airspace Enforcement of the Immigration and
This proposal will be subject to an
Designations and Reporting Points, Nationality Act
environmental analysis in accordance
dated August 6, 2015, and effective
with FAA Order 1050.1F, AGENCY: Civil Rights Division,
September 15, 2015. FAA Order
‘‘Environmental Impacts: Policies and Department of Justice.
7400.9Z is publicly available as listed in
Procedures’’ prior to any FAA final
the ADDRESSES section of this document. ACTION: Notice of proposed rulemaking.
regulatory action.
FAA Order 7400.9Z lists Class A, B, C,
D, and E airspace areas, air traffic List of Subjects in 14 CFR Part 71 SUMMARY: The Department of Justice
service routes, and reporting points. (Department) proposes to revise
Airspace, Incorporation by reference, regulations implementing a section of
The Proposal Navigation (air). the Immigration and Nationality Act
The FAA is proposing an amendment The Proposed Amendment concerning unfair immigration-related
to Title 14 Code of Federal Regulations employment practices. The proposed
(14 CFR) Part 71 by modifying Class E5 Accordingly, pursuant to the revisions are appropriate to conform the
airspace extending upward from 700 authority delegated to me, the Federal regulations to the statutory text as
feet above the surface at Albany Aviation Administration proposes to amended, simplify and add definitions
Municipal Airport, Albany, OR. amend 14 CFR part 71 as follows: of statutory terms, update and clarify
Controlled airspace would extend to the procedures for filing and processing
within a 6.7-mile radius of the airport to PART 71—DESIGNATION OF CLASS A, charges of discrimination, ensure
accommodate IFR departures up to B, C, D, AND E AIRSPACE AREAS; AIR effective investigations of unfair
sradovich on DSK3GMQ082PROD with PROPOSALS
1,200 feet above the surface; would TRAFFIC SERVICE ROUTES; AND immigration-related employment
include a small extension to the REPORTING POINTS practices, reflect developments in
southwest to accommodate IFR arrivals nondiscrimination jurisprudence, reflect
below 1,500 feet above the surface; and ■ 1. The authority citation for 14 CFR changes in existing practices (e.g.,
a segment east of longitude 123° would Part 71 continues to read as follows: electronic filing of charges), reflect the
be removed, as there are no IFR Authority: 49 U.S.C. 106(f), 106(g), 40103, new name of the office within the
operations within that area. The FAA 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, Department charged with enforcing this
found these modifications necessary for 1959–1963 Comp., p. 389. statute, and replace outdated references.
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![Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Proposed Rules 53967
would change the phrase ‘‘has been depend on why the employer Coal. v. Heritage Landscape Servs., LLC,
adversely affected’’ to ‘‘is adversely discriminates but rather on the explicit 10 OCAHO no. 1134, 8 (2010).
affected’’ to more closely track the terms of the discrimination.’’). New paragraph (i) would contain a
statutory language. New paragraph (f) would define the revised and simplified definition of
New paragraph (c) would define the phrase ‘‘for purposes of satisfying the ‘‘injured party.’’ It would clarify that
term ‘‘citizenship status.’’ The proposed requirements of section 1324a(b).’’ This this term includes any person who
revisions add this term to the list of proposed definition incorporates the claims to be adversely affected by an
defined statutory terms to codify the well-established construction of this unfair immigration-related employment
definition of this term, consistent with statutory language to include all of an practice.
the Special Counsel’s longstanding employer’s efforts to verify an New paragraph (j) would define the
guidance to the public. An individual’s individual’s employment eligibility. statutory phrase ‘‘more or different
citizenship status connotes more than Thus, this definition includes not only documents than are required under such
simply whether the individual is or is the process related to completing the section.’’ In accordance with both the
not a U.S. citizen, and encompasses as DHS Employment Eligibility weight of OCAHO authority and the
well a non-U.S. citizen’s immigration Verification Form I–9, but also any other longstanding interpretation of the
status. For example, a refugee denied employment eligibility verification Special Counsel, this proposed
hire because of his or her refugee status practices, such as the DHS electronic definition provides that an employer’s
could be a victim of unlawful employment eligibility verification (E- request that an individual present
discrimination. Relevant administrative Verify) process. See, e.g., United States specific documents from the Form I–9
decisions support the conclusion that an v. Mar-Jac Poultry, Inc., 10 OCAHO no. Lists of Acceptable Documents for
individual’s citizenship status includes 1148, 11 (2012). employment eligibility verification
immigration status. See, e.g., Kamal- New paragraph (g) would define the purposes violates 8 U.S.C. 1324b(a)(6)
Griffin v. Cahill Gordon & Reindel, 3 phrase ‘‘for the purpose or with the where that request is made because of
OCAHO no. 568, 1641, 1647 (1993) intent of discriminating against an the individual’s national origin or
(‘‘Congress intended the term individual in violation of paragraph citizenship status. See, e.g., United
‘citizenship status’ to refer both to (1),’’ as that phrase is used in 8 U.S.C. States v. Townsend Culinary, Inc., 8
alienage and to non-citizen status.’’). 1324b(a)(6). This proposed definition OCAHO no. 1032, 454, 507 (1999);
New paragraph (d) would contain a clarifies that the act of intentionally United States v. Strano Farms, 5
revised definition of ‘‘complaint.’’ The treating an individual differently based OCAHO no. 748, 206, 222–23 (1995);
proposed revision would clarify that on national origin or citizenship status United States v. Beverly Ctr., 5 OCAHO
complaints must be filed with OCAHO is sufficient to demonstrate no. 762, 347, 351 (1995); United States
and allege one or more unfair discriminatory intent regardless of the v. A.J. Bart, Inc., 3 OCAHO no. 538,
immigration-related employment explanation for the discrimination, and 1374, 1387 (1993); see also United
practices, and would replace the regardless of whether it is based on States v. Zabala Vineyards, 6 OCAHO
reference to the former Immigration and animus or hostility. See United States v. no. 830, 72, 85–88 (1995) (holding, prior
Naturalization Service with the DHS, in Life Generations Healthcare, LLC, 11 to the enactment of IIRIRA, that 8 U.S.C.
accordance with the HSA. OCAHO no. 1227, 22–23 (2014) (stating 1324b(a)(6) did not prohibit an
New paragraph (e) would define the that the discriminatory intent inquiry employer’s request for specific
term ‘‘discriminate,’’ as that term is under 8 U.S.C. 1324b(a)(6) involves documents ‘‘in the absence of evidence
used in 8 U.S.C. 1324b. This proposed ‘‘ask[ing] the question whether the that . . . aliens but not other new hires
definition clarifies that discrimination outcome would have been different if were required to rely on and produce
means the act of intentionally treating the groups had been reversed’’). For specific documents’’). To interpret the
an individual differently, regardless of instance, an employer’s request that an statute otherwise would allow
the explanation for the discrimination, individual present more or different employers to discriminate against an
and regardless of whether it is because documents than required under 8 U.S.C. individual by imposing more
of animus or hostility. See, e.g., United 1324a(b) because of the individual’s restrictions on the documentation that
States v. Sw. Marine Corp., 3 OCAHO citizenship status or national origin an individual can show to establish
no. 429, 336, 359 (1992). Section 1324b constitutes intentional discrimination, identity and employment authorization
is modeled after Title VII of the Civil even if the employer thought that than 8 U.S.C. 1324a(b) provides.
Rights Act of 1964, and case law under requesting such documents would help New paragraph (k) would contain a
that provision confirms that intentional the individual complete the Form I–9 revised definition of ‘‘protected
discrimination does not require animus faster or even if the employer was individual.’’ This proposed revision
or hostility. See Sodhi v. Maricopa Cty. completely unaware of the prohibition restructures the existing definition for
Special Health Care Dist., 10 OCAHO against discrimination in the the purpose of clarity, and replaces a
no. 1127, 7–8 (2008) (‘‘Because § 1324b employment eligibility verification reference to the former Immigration and
was expressly modeled on Title VII of process. See id. Naturalization Service with the DHS, in
the Civil Rights Act of 1964 as amended New paragraph (h) would define accordance with the HSA.
. . . case law developed under that ‘‘hiring.’’ This proposed definition is New paragraph (l) would define
statute has long been held to be intended to make clear that conduct ‘‘recruitment and referral for a fee.’’ This
persuasive in interpreting § 1324b.’’); during the entire hiring process, and not proposed definition is intended to make
see also Int’l Union v. Johnson Controls, solely the employer’s final hiring clear that conduct during the entire
sradovich on DSK3GMQ082PROD with PROPOSALS
Inc., 499 U.S. 187, 199 (1991) (stating decision, may constitute an unfair process of recruitment or referral for a
that, in the context of Title VII, ‘‘absence immigration-related employment fee, and not solely the employer’s final
of a malevolent motive does not convert practice. This definition is consistent recruitment or referral decision, may
a facially discriminatory policy into a with the Special Counsel’s longstanding constitute an unfair immigration-related
neutral policy with a discriminatory interpretation and is well-established in employment practice. This definition is
effect. Whether an employment practice relevant administrative decisions. See, consistent with the Special Counsel’s
involves disparate treatment through e.g., Mar-Jac Poultry, Inc., 10 OCAHO longstanding interpretation and is well-
explicit facial discrimination does not no. 1148 at 11; Mid-Atlantic Reg’l Org. established in relevant administrative
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![53968 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Proposed Rules
decisions. See, e.g., Mid-Atl. Reg’l Org. employment. Liability for unfair employees for each working day in each
Coal., 10 OCAHO no. 1134 at 8 (‘‘The documentary practices should not of 20 or more calendar weeks during the
governing statute specifically applies to depend on whether an individual can current or preceding calendar year. Id.
recruitment for employment as well as prove that the documentary request was If an employer does not meet this
to hiring, and OCAHO cases have long made as a condition of employment. threshold, but employed more than
held that it is the entire selection Furthermore, the statutory text three employees on the date of the
process, and not just the hiring decision describing unfair documentary practices alleged discrimination, the Special
alone, which must be considered in does not include any language requiring Counsel will investigate the charge.
order to ensure that there are no rescission of an employment offer,
Section 44.300 Filing a Charge
unlawful barriers to opportunities for discharge, or other economic harm to
employment.’’). establish liability. See Mar-Jac Poultry, The proposed revision to paragraph
New paragraph (m) would contain a Inc., 10 OCAHO no. 1148 at 11 (‘‘[A]n (a) would replace a reference to the
revised definition of ‘‘respondent.’’ This ‘injury’ is not necessary to establish former Immigration and Naturalization
proposed revision is intended to clarify liability for document abuse.’’ (quoting Service with the DHS, in accordance
that an entity against whom the Special United States v. Patrol & Guard Enters., with the HSA, and simplify the
Counsel opens an investigation is Inc., 8 OCAHO no. 1040, 603, 625 paragraph’s structure.
considered a respondent, regardless of (2000))); Townsend Culinary, Inc., 8 Paragraph (b) would be revised to
whether the investigation was initiated OCAHO no. 1032, 454, 498–500 (finding simplify the existing language and
by a charge filed under 8 U.S.C. pattern or practice of unfair clarify that a charge is deemed to be
1324b(b)(1) or the Special Counsel’s documentary practices and assessing filed on the date it is transmitted or
independent statutory authority to civil penalties for violations without delivered in instances in which it is
investigate possible unfair immigration- requiring a showing of economic harm); filed by a method other than by mail.
related employment practices pursuant Robison Fruit Ranch, Inc. v. United Paragraph (c) would be revised to
to 8 U.S.C. 1324b(d)(1). States, 147 F.3d 798, 802 (9th Cir. 1998) remove specific references to addresses,
New paragraph (n) would contain a (request may be an unfair documentary in order to avoid the need for future
revised definition of ‘‘Special Counsel.’’ practice even if individual was able to technical revisions; to codify the
This proposed revision makes clear that comply with the request). These existing practice of accepting charge
a duly authorized designee may act as revisions are consistent with the Special filings through means other than mail
the Special Counsel when the Special Counsel’s longstanding interpretation of and courier delivery; and to account for
Counsel position is vacant. the statute. new methods of charge filings in the
Paragraph (b) sets forth three future.
Section 44.102 Computation of Time Paragraph (d) would be revised to be
circumstances in which paragraph (a)(1)
Section 44.102 is added to provide does not apply. The proposed revision consistent with the statutory text.
clarification regarding the calculation of would replace the reference to Section 1324b(b)(2) of title 8 of the
time periods specified in part 44. paragraph (a) with a reference to United States Code prohibits the filing
paragraph (a)(1) to conform the of a charge described in section
Section 44.200 Unfair Immigration-
exceptions language to the statutory 1324b(a)(1)(A) with the Special Counsel
Related Employment Practices
text. if a charge with respect to that practice
Paragraph (a) sets forth the three based on the same set of facts has been
forms of prohibited unfair immigration- Section 44.202 Counting Employees filed with the EEOC under title VII of
related employment practices: (1) for Jurisdictional Purposes the Civil Rights Act of 1964, unless the
Discrimination with respect to hiring, This proposed section is newly added charge is dismissed as being outside the
recruiting or referring for a fee, or and would codify the existing process scope of such title. Current paragraph
discharging an individual; (2) by which the Special Counsel (d) broadens this prohibition to exclude
intimidation or retaliation; and (3) determines whether the Special Counsel not only duplicative national origin
unfair documentary practices. The or the Equal Employment Opportunity claims under section 1324b(a)(1)(A) but
proposed revisions would clarify Commission (EEOC) has jurisdiction also citizenship status claims under
specific parameters of conduct that over a claim of national origin section 1324b(a)(1)(B) that are based on
constitute unfair documentary practices. discrimination under 8 U.S.C. the same set of facts as an EEOC charge.
Paragraph (a)(3) sets forth the 1324b(a)(1). This section makes clear The amendment would make this
prohibition against unfair documentary that the Special Counsel’s office will paragraph consistent with the statute by
practices. The proposed revisions would count all full-time and part-time limiting this prohibition to only
replace the term ‘‘documentation employees employed on the date of the national origin charges filed with the
abuses’’ with ‘‘unfair documentary alleged discrimination to determine Special Counsel under section
practices’’ to more clearly describe the whether it has jurisdiction over an 1324b(a)(1)(A).
prohibited conduct. Further, to conform entity charged with national origin
to the statutory text, which was discrimination under 8 U.S.C. Section 44.301 Receipt of Charge
amended by section 421 of IIRIRA, these 1324b(a)(1). In assessing whether the This section would be substantially
proposed revisions clarify that a EEOC might have primary jurisdiction reorganized to eliminate ambiguities in
showing of intentional discrimination is over allegations of national origin the existing regulations regarding the
required to establish an unfair discrimination, the Special Counsel will process the Special Counsel follows
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documentary practice under 8 U.S.C. also rely on the method for calculating when a charge is received. Paragraph (a)
1324b(a)(6). Additionally, the proposed an entity’s number of employees set would be revised to clarify when the
revisions would clarify, based on the forth in Title VII of the Civil Rights Act obligation is triggered under 8 U.S.C.
plain language of the statutory text, that of 1964. See 42 U.S.C. 2000e(b). The 1324b(b)(1) to provide notice to the
unfair documentary practices do not Special Counsel will refer section charging party and respondent of the
require a showing that the 1324b(a)(1) national origin Special Counsel’s receipt of a charge.
discriminatory documentary request discrimination charges to the EEOC Paragraph (b) would set forth the
was made as a condition of where an employer has 15 or more contents of the Special Counsel’s
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written notice to the charging party, New paragraph (f) would be added to requiring the production of relevant
replace a reference to the former account for the referral of incomplete or evidence. Id. Finally, since at least 2006,
Immigration and Naturalization Service complete charges to the Special Counsel all entities subject to an investigation by
with the DHS, in accordance with the by another government agency. the Special Counsel have been
HSA, and conform language regarding New paragraph (g) would be instructed in writing, at the outset of the
the charging party’s time frame for filing substantially similar to existing investigation, to preserve relevant
a complaint to existing statutory text. paragraph (d)(1), with an additional documents. These obligations are also
See 8 U.S.C. 1324b(d)(2). clarification regarding the dismissal of consistent with ‘‘litigation hold’’
New paragraph (c) would be inadequate submissions, and the requirements under the Federal Rules of
substantially similar to existing elimination of the term ‘‘with Civil Procedure. See, e.g., Fed. R. Civ. P.
paragraph (e), which sets forth the prejudice.’’ These proposed revisions 16(b)(3)(B)(iii), 26(b)(5)(B), 45(e)(2)(B).
contents of the Special Counsel’s notice would incorporate the standards set
to the respondent. forth in administrative decisions for Section 44.303 Determination
New paragraph (d) would combine determining whether an incomplete or Paragraph (a) would be revised and
existing paragraphs (c)(1) and (d)(2) to complete charge that is filed late should simplified.
more clearly state the process for nonetheless be considered timely, Paragraph (b) would be revised to
handling inadequate submissions filed including when a dismissed incomplete more clearly set forth the time frame for
with the Special Counsel. This proposed charge is resubmitted for consideration the Special Counsel to issue letters of
revision also applies the methodology in based on equitable reasons. It is well- determination.
revised § 44.300(b) to determine when established in relevant administrative Paragraph (c) would be revised to
an inadequate submission later deemed decisions that the 180-day charge filing replace a reference to the former
to be a charge is considered filed and period is not a jurisdictional Immigration and Naturalization Service
when additional information provided prerequisite, but is subject to waiver, with the DHS, in accordance with the
pursuant to the Special Counsel’s estoppel, and equitable tolling. See, e.g., HSA.
request in response to an inadequate Lardy v. United Airlines, Inc., 4 OCAHO Paragraph (d) would be revised to
submission is considered timely. While no. 595, 31, 73 (1994); Halim v. Accu- clarify that the Special Counsel is not
the statute requires that a charge be filed Labs Research, Inc., 3 OCAHO no. 474, bound by the 90-day statutory time limit
with the Special Counsel within 180 765, 779 (1992). While those equitable on filing a complaint that is applicable
days of the alleged violation, see 8 modifications of filing deadlines are to individuals filing private actions. The
U.S.C. 1324b(d)(3), the statute does not sparingly applied, they may be available only statutory time limit on the Special
speak to the handling or processing of particularly where the failure to meet a Counsel’s authority to file a complaint
inadequate submissions. Existing deadline arose from circumstances based on a charge is contained in 8
regulations address inadequate beyond the charging party’s control. U.S.C. 1324b(d)(3), entitled ‘‘Time
submissions as a practical necessity to See, e.g., Sabol v. N. Mich. Univ., 9 limitations on complaints,’’ and states
prevent the Special Counsel’s office OCAHO no. 1107, 4–5 (2004). that ‘‘[n]o complaint may be filed
from investigating claims that clearly respecting any unfair immigration-
fall outside of its jurisdiction, while at Section 44.302 Investigation related employment practice occurring
the same time ensuring that timely-filed Paragraph (a) would be revised to more than 180 days prior to the date of
meritorious charges that may be missing describe more broadly the means by the filing of the charge with the Special
some information can still be which the Special Counsel may Counsel.’’ The 90-day statutory time
considered timely. The revisions to the undertake an investigation of possible limit, in contrast, is contained in 8
current regulations aim to set forth more unfair immigration-related employment U.S.C. 1324b(d)(2), entitled ‘‘Private
clearly and revise the procedures for practices, including the authority to actions,’’ and states that ‘‘the person
handling inadequate submissions, solicit testimony as necessary. making the charge may (subject to
including by retaining the 45-day grace New paragraph (b) would authorize paragraph (3)) file a complaint directly
period to allow a charging party to the Special Counsel to require any before such a judge within 90 days after
provide requested additional person or other entity to present Forms the date of receipt of the notice.’’ The
information consistent with the Special I–9 for inspection. The Immigration and ‘‘Private actions’’ provision makes clear
Counsel’s long-standing practice. This Nationality Act expressly provides the that the Special Counsel has a right to
grace period is consistent with the Special Counsel with authority to ‘‘investigate the charge or to bring a
remedial purpose of section 1324b. See inspect Forms I–9. See 8 U.S.C. complaint . . . during such 90-day
United States v. Mesa Airlines, 1 1324a(b)(3). period.’’ Id. Nothing in the statute
OCAHO no. 74, 461, 513 (1989) New paragraph (c) would be explicitly states that the Special Counsel
(recognizing the ‘‘remedial purpose’’ of substantially similar to existing is subject to that 90-day limit, however,
section 1324b). That purpose would be paragraph (b), but would broaden the or prohibits the Special Counsel’s office
frustrated, and meritorious claims list of items that an entity or person from continuing to investigate a charge
would be foreclosed, if the Special must permit the Special Counsel to or from filing its own complaint based
Counsel imposed a harsh and rigid rule access. on a charge even after the 90-day period
requiring dismissal of timely-filed New paragraph (d) would codify the for a charging party to file a private
charges that may allege a violation of preservation obligations of a respondent complaint has run.
section 1324b, but that do not set forth that is the subject of an investigation by Relevant administrative decisions
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all the elements necessary to be deemed the Special Counsel. Such obligations interpreting section 1324b support the
a complete charge. are necessary to ensure that the Special conclusion that the Special Counsel is
New paragraph (e) would be Counsel’s right to access and examine not bound by the statutory time limits
substantially similar to existing evidence is preserved. See id. that are applicable to individuals filing
paragraph (c)(2), with an additional 1324b(f)(2). In addition, these private actions. See, e.g., United States
revision to ensure consistency in the obligations are reasonable and v. Agripac, Inc., 8 OCAHO no. 1028,
regulations on the determination of the appropriate in light of the Special 399, 404 (1999) (stating that section
filing date of an inadequate submission. Counsel’s authority to seek a subpoena 1324b ‘‘does not set out in terms any
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![53970 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Proposed Rules
particular time within which the States v. Fairfield Jersey, Inc., 9 OCAHO public inspection online at http://
Special Counsel must file a complaint no. 1069, 5 (2001) (acknowledging the www.regulations.gov. The information
before an administrative law judge’’); absence of a statutory time limitation for made available includes personal
United States v. Gen. Dynamics Corp., 3 the filing of a complaint arising out of identifying information (such as name
OCAHO no. 517, 1121, 1156 (1993) an independent investigation). The and address) voluntarily submitted by
(‘‘The statute contains no time statute provides only that the Special the commenter.
limitations on the Special Counsel’s Counsel’s authority to file a complaint If you want to submit personal
authority to conduct independent based on such investigations be ‘‘subject identifying information (such as your
investigations or to subsequently file to’’ 8 U.S.C. 1324b(d)(3), which in turn name and address) as part of your
complaints based on such specifies that ‘‘[n]o complaint may be comment, but do not want it to be
investigations.’’). The Special Counsel’s filed respecting any unfair immigration- posted online, you must include the
position is also consistent with the related employment practice occurring phrase ‘‘PERSONAL IDENTIFYING
Supreme Court’s interpretation of a more than 180 days prior to the date of INFORMATION’’ in the first paragraph
similar provision in Title VII of the 1964 the filing of the charge with the Special of your comment. You also must locate
Civil Rights Act. See Occidental Life Ins. Counsel.’’ 8 U.S.C. 1324b(d)(1), (3) all the personal identifying information
Co. of Calif. v. EEOC, 432 U.S. 355, 361 (emphasis added). Where the Special you do not want posted online in the
(1977) (holding that the EEOC is not Counsel is conducting an investigation first paragraph of your comment and
subject to a complaint-filing deadline on his or her own initiative, no ‘‘charge’’ identify what information you want
where the statutory language does not has been filed. The most reasonable redacted.
explicitly contain such a deadline and application of 8 U.S.C. 1324b(d)(3) in If you want to submit confidential
the legislative history does not support that circumstance, therefore, is that the business information as part of your
it). Given that section 1324b is modeled Special Counsel may not file a comment, but do not want it to be
after Title VII—with similar charge- complaint unless an investigation on the posted online, you must include the
filing procedures and virtually identical Special Counsel’s own initiative phrase ‘‘CONFIDENTIAL BUSINESS
timetables—the Supreme Court’s ruling pursuant to 8 U.S.C. 1324b(d)(1) was INFORMATION’’ in the first paragraph
on this issue is highly instructive. See opened within 180 days of the last of your comment. You also must
Sodhi, 10 OCAHO no. 1127 at 7–8. known act of discrimination, as the prominently identify confidential
The Special Counsel’s authority to file opening of the Special Counsel’s business information to be redacted
a complaint based on a charge is, investigation is the nearest equivalent to within the comment. If a comment has
however, subject to some time limits. the filing of a charge. The current so much confidential business
Similar to the EEOC, the Special regulations require the Special Counsel information that it cannot be effectively
Counsel is bound by equitable limits on to file a complaint ‘‘where there is redacted, all or part of that comment
the filing of a complaint. See EEOC v. reasonable cause to believe that an may not be posted on http://
Propak Logistics, Inc., 746 F.3d 145 (4th unfair immigration-related employment www.regulations.gov.
Cir. 2014). In addition, the Special practice has occurred within 180 days Personal identifying information and
Counsel must comply with the five-year from the date of the filing of the confidential business information
statutory time limit in 28 U.S.C. 2462 complaint.’’ 28 CFR 44.304(a) (emphasis identified and located as set forth above
for bringing actions to impose civil added). That requirement unnecessarily will be placed in the agency’s public
penalties. restricts the Special Counsel’s docket file, but not posted online. The
Section 44.304 Special Counsel Acting enforcement authority and is not docket file will be available for public
on Own Initiative required by the language of the statute. inspection during normal business
While the Special Counsel and hours at 1425 New York Avenue, Suite
Paragraph (a) sets forth the process for respondents have entered into 9000, Washington, DC 20005. Upon
the Special Counsel to conduct an stipulations to extend the complaint-
investigation on his or her own request, individuals who require
filing date in circumstances when the assistance to review comments will be
initiative. This paragraph would be Special Counsel requires more time to
revised to conform with the Special provided with appropriate aids such as
conduct an investigation under 8 U.S.C. readers or print magnifiers. If you wish
Counsel’s existing practice of notifying 1324b(d)(1) or to facilitate settlement
a respondent by certified mail of an to inspect the agency’s public docket
discussions, it is appropriate to revise file in person, please see the FOR
investigation opened under this the regulations to better accord with the FURTHER INFORMATION CONTACT
paragraph. Comments addressing statutory language. Similar to the EEOC,
whether the use of certified mail is paragraph above to schedule an
the Special Counsel is bound by appointment.
effective are encouraged. For equitable limits on the filing of a
commenters who believe another Copies of this rule may be obtained in
complaint. Propak Logistics, 746 F.3d alternative formats (large print, Braille,
method is preferable (such as regular 145. In addition, the Special Counsel
mail or regular mail with delivery audio tape, or disc), upon request, by
must comply with the five-year calling DeJuana Grant at (202) 616–
tracking), comments explaining why statutory time limit for bringing actions
another method is preferable are also 5594. TTY/TDD callers may dial toll-
to impose civil penalties. 28 U.S.C. free (800) 237–2515 to obtain
encouraged. 2462.
Paragraph (b) would be revised to information or request materials in
make the time frame for the Special Section 44.305 Regional Offices alternative formats.
sradovich on DSK3GMQ082PROD with PROPOSALS
Counsel to bring a complaint based on The proposed rule would amend this Regulatory Procedures
an investigation opened on the Special section to conform its language to 8
Counsel’s own initiative pursuant to 8 Executive Order 12866 (Regulatory
U.S.C. 1324b(c)(4). Planning and Review) and Executive
U.S.C. 1324b(d)(1) and 28 CFR 44.304(a)
consistent with the statutory text. The Public Participation Order 13563 (Improving Regulation and
statutory text can be reasonably read to Please note that all comments Regulatory Review)
provide no time limit for the Special received are considered part of the The rule has been drafted and
Counsel to file a complaint. United public record and are made available for reviewed in accordance with Executive
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Executive Order 13045 (Protection of four years, by and with the advice and 44.201 [Reserved].
Children) consent of the Senate, pursuant to 44.202 Counting employees for
section 274B of the Immigration and jurisdictional purposes.
This proposed rule is not a covered 44.300 Filing a charge.
regulatory action under Executive Order Nationality Act (INA), 8 U.S.C. 1324b.
44.301 Receipt of charge.
13045 (Apr. 21, 1997). The proposed The Immigrant and Employee Rights 44.302 Investigation.
rule would have no environmental Section shall be part of the Civil Rights 44.303 Determination.
health risk or safety risk that may Division of the Department of Justice, 44.304 Special Counsel acting on own
disproportionately affect children. and the Special Counsel shall report initiative.
directly to the Assistant Attorney 44.305 Regional offices.
Executive Order 12630 (Constitutionally General, Civil Rights Division. Authority: 8 U.S.C. 1103(a)(1), (g), 1324b.
Protected Property Rights) (b) In carrying out the Special
This proposed rule does not have Counsel’s responsibilities under section § 44.100 Purpose.
takings implications under Executive 274B of the INA, the Special Counsel is The purpose of this part is to
Order 12630 (Mar. 15, 1988). The authorized to: implement section 274B of the
proposed rule would not effect a taking (1) Investigate charges of unfair Immigration and Nationality Act (8
or require dedications or exactions from immigration-related employment U.S.C. 1324b), which prohibits certain
owners of private property. practices filed with the Immigrant and unfair immigration-related employment
Employee Rights Section and, when practices.
Executive Order 12988 (Civil Justice appropriate, file complaints with
Reform Analysis) respect to those practices before § 44.101 Definitions.
This proposed rule was drafted and specially designated administrative law For purposes of 8 U.S.C. 1324b and
reviewed in accordance with Executive judges within the Office of the Chief this part:
Order 12988 (Feb. 5, 1996), and will not Administrative Hearing Officer, (a) Charge means a written statement
unduly burden the Federal court Executive Office for Immigration in any language that—
system. Complaints respecting unfair Review, U.S. Department of Justice; (1) Is made under oath or affirmation;
immigration-related employment (2) Intervene in proceedings involving (2) Identifies the charging party’s
practices are heard in the first instance complaints of unfair immigration- name, address, and telephone number;
related employment practices that are (3) Identifies the injured party’s name,
by the Department of Justice, Executive
brought directly before such address, and telephone number, if the
Office for Immigration Review, Office of
administrative law judges by parties charging party is not the injured party;
the Chief Administrative Hearing
other than the Special Counsel; (4) Identifies the name and address of
Officer.
(3) Conduct, on the Special Counsel’s the person or other entity against whom
List of Subjects own initiative, investigations of unfair the charge is being made;
immigration-related employment (5) Includes a statement sufficient to
28 CFR Part 0 describe the circumstances, place, and
practices and, where appropriate, file
Authority delegations (Government complaints with respect to those date of an alleged unfair immigration-
agencies), Government employees, practices before such administrative law related employment practice;
Organization and functions judges; (6) Indicates whether the basis of the
(Government agencies), Privacy, (4) Conduct, handle, and supervise alleged unfair immigration-related
Reporting and recordkeeping litigation in U.S. District Courts for employment practice is discrimination
requirements, Whistleblowing. judicial enforcement of subpoenas or based on national origin, citizenship
orders of administrative law judges status, or both; or involves intimidation
28 CFR Part 44
regarding unfair immigration-related or retaliation; or involves unfair
Administrative practice and employment practices; documentary practices;
procedure, Equal employment (5) Initiate, conduct, and oversee (7) Indicates the citizenship status of
opportunity, Immigration. activities relating to the dissemination the injured party;
For the reasons stated in the of information to employers, employees, (8) Indicates, if known, the number of
preamble, the Attorney General and the general public concerning individuals employed on the date of the
proposes to revise 28 CFR parts 0 and unfair immigration-related employment alleged unfair immigration-related
44 as follows: practices; employment practice by the person or
(6) Establish such regional offices as other entity against whom the charge is
PART 0—ORGANIZATION OF THE may be necessary, in accordance with being made;
DEPARTMENT OF JUSTICE regulations of the Attorney General; (9) Is signed by the charging party
(7) Perform such other functions as and, if the charging party is neither the
■ 1. The authority citation for part 0 the Assistant Attorney General, Civil injured party nor an officer of the
continues to read as follows: Rights Division may direct; and Department of Homeland Security,
Authority: 5 U.S.C. 301; 28 U.S.C. 509, (8) Delegate to any subordinate any of indicates that the charging party has the
510, 515–519. the authority, functions, or duties vested authorization of the injured party to file
■ 2. Section 0.53 is revised to read as in the Special Counsel. the charge;
follows: ■ 3. Revise part 44 to read as follows: (10) Indicates whether a charge based
on the same set of facts has been filed
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§ 0.53 Immigrant and Employee Rights PART 44—UNFAIR IMMIGRATION- with the Equal Employment
Section. RELATED EMPLOYMENT PRACTICES Opportunity Commission, and if so, the
(a) The Immigrant and Employee specific office and contact person (if
Sec.
Rights Section shall be headed by a 44.100 Purpose. known); and
Special Counsel for Immigration-Related 44.101 Definitions. (11) Authorizes the Special Counsel to
Unfair Employment Practices (‘‘Special 44.102 Computation of time. reveal the identity of the injured or
Counsel’’). The Special Counsel shall be 44.200 Unfair immigration-related charging party when necessary to carry
appointed by the President for a term of employment practices. out the purposes of this part.
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(C) The Attorney General determines to that practice based on the same set of been submitted to constitute a complete
to be essential for an employer to do facts has been filed with the Equal charge, the Special Counsel shall issue
business with an agency or department Employment Opportunity Commission the notices required by paragraphs (b)
of the Federal, State, or local under title VII of the Civil Rights Act of and (c) of this section within 10 days.
government. 1964, unless the charge is dismissed as (e) In the Special Counsel’s discretion,
(2) Notwithstanding any other being outside the scope of such title. No the Special Counsel may deem a
provision of this part, it is not an unfair charge respecting an employment submission to be a complete charge
immigration-related employment practice may be filed with the Equal even though it is inadequate to
practice for a person or other entity to Employment Opportunity Commission constitute a charge as defined in
prefer to hire an individual, or to recruit under such title if a charge with respect § 44.101(a). The Special Counsel may
or refer for a fee an individual, who is to such practice based on the same set then obtain the additional information
a citizen or national of the United States of facts has been filed under this specified in § 44.101(a) in the course of
over another individual who is an alien section, unless the charge is dismissed investigating the charge.
if the two individuals are equally as being outside the scope of this part. (f) A charge or an inadequate
qualified. submission referred to the Special
§ 44.301 Receipt of charge. Counsel by a federal, state, or local
§ 44.201 [Reserved]. (a) Within 10 days of receipt of a government agency appointed as an
charge, the Special Counsel shall notify agent for accepting charges on behalf of
§ 44.202 Counting employees for
jurisdictional purposes.
the charging party and respondent by the Special Counsel is deemed filed on
certified mail, in accordance with the date the charge or inadequate
The Special Counsel will calculate the paragraphs (b) and (c) of this section, of
number of employees referred to in submission was postmarked to or
the Special Counsel’s receipt of the otherwise delivered or transmitted to
§ 44.200(b)(1)(i) by counting all part- charge.
time and full-time employees employed that agency. Upon receipt of the referred
(b) The notice to the charging party charge or inadequate submission, the
on the date that the alleged shall specify the date on which the
discrimination occurred. The Special Special Counsel shall follow the
charge was received; state that the applicable notification procedures for
Counsel will use the 20 calendar week charging party, other than an officer of
requirement contained in Title VII of the the receipt of a charge or inadequate
the Department of Homeland Security, submission set forth in this section.
Civil Rights Act of 1964, 42 U.S.C. may file a complaint before an
2000e(b), for purposes of determining (g) The Special Counsel shall dismiss
administrative law judge if the Special a charge or inadequate submission that
whether the exception of Counsel does not do so within 120 days
§ 44.200(b)(1)(ii) applies, and will refer is filed more than 180 days after the
of receipt of the charge; and state that alleged occurrence of an unfair
to the Equal Employment Opportunity the charging party will have 90 days
Commission charges of national origin immigration-related employment
from the receipt of the letter of practice, unless the Special Counsel
discrimination that the Special Counsel determination issued pursuant to
determines are covered by 42 U.S.C. determines that the principles of waiver,
§ 44.303(b) by which to file such a estoppel, or equitable tolling apply.
2000e–2. complaint.
(c) The notice to the respondent shall § 44.302 Investigation.
§ 44.300 Filing a charge.
include the date, place, and (a) The Special Counsel may seek
(a) Who may file. Charges may be
circumstances of the alleged unfair information, request documents and
filed by:
(1) Any injured party; immigration-related employment answers to written interrogatories,
(2) Any individual or entity practice. inspect premises, and solicit testimony
authorized by an injured party to file a (d)(1) If a charging party’s submission as the Special Counsel believes is
charge with the Special Counsel alleging is found to be inadequate to constitute necessary to ascertain compliance with
that the injured party is adversely a complete charge as defined in this part.
affected directly by an unfair § 44.101(a), the Special Counsel shall (b) The Special Counsel may require
immigration-related employment notify the charging party that the charge any person or other entity to present
practice; or is incomplete and specify what Employment Eligibility Verification
(3) Any officer of the Department of additional information is needed. Forms (‘‘Forms I–9’’) for inspection.
Homeland Security who alleges that an (2) An incomplete charge that is later (c) The Special Counsel shall have
unfair immigration-related employment deemed to be complete under this reasonable access to examine the
practice has occurred or is occurring. paragraph is deemed filed on the date evidence of any person or other entity
(b) Charges shall be filed within 180 the initial but inadequate submission is being investigated. The respondent shall
days of the alleged occurrence of an postmarked or otherwise delivered or permit access by the Special Counsel
unfair immigration-related employment transmitted to the Special Counsel, during normal business hours to such
practice. A charge is deemed to be filed provided any additional information books, records, accounts, papers,
on the date it is postmarked or the date requested by the Special Counsel electronic and digital documents,
on which the charging party otherwise pursuant to this paragraph is databases, systems of records, witnesses,
delivers or transmits the charge to the postmarked or otherwise provided, premises, and other sources of
Special Counsel. delivered or transmitted to the Special information the Special Counsel may
Counsel within 180 days of the alleged deem pertinent to ascertain compliance
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(c) Charges may be sent by:
(1) U.S. mail; occurrence of an unfair immigration- with this part.
(2) Courier service; related employment practice or within (d) A respondent, upon receiving
(3) Electronic or online submission; or 45 days of the date on which the notice by the Special Counsel that it is
(4) Facsimile. charging party received the Special under investigation, shall preserve all
(d) No charge may be filed respecting Counsel’s request for additional evidence, information, and documents
an unfair immigration-related information, whichever is later. potentially relevant to any alleged
employment practice described in (3) Once the Special Counsel unfair immigration-related employment
§ 44.200(a)(1)(i) if a charge with respect determines adequate information has practices, and shall suspend routine or
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![53978 Federal Register / Vol. 81, No. 157 / Monday, August 15, 2016 / Proposed Rules
automatic deletion of all such evidence, General, shall establish such regional submission (i.e. on the web, cloud, or
information, and documents. offices as may be necessary to carry out other file sharing system). For
the Special Counsel’s duties. additional submission methods, please
§ 44.303 Determination.
Dated: August 4, 2016. contact the person identified in the ‘‘For
(a) Within 120 days of the receipt of
Loretta E. Lynch, Further Information Contact’’ section.
a charge, the Special Counsel shall
Attorney General. For the full EPA public comment policy,
undertake an investigation of the charge
and determine whether to file a [FR Doc. 2016–18957 Filed 8–12–16; 8:45 am] information about CBI or multimedia
complaint with respect to the charge. BILLING CODE 4410–13–P
submissions, and general guidance on
(b) If the Special Counsel determines making effective comments, please visit
not to file a complaint with respect to http://www2.epa.gov/dockets/
such charge by the end of the 120-day ENVIRONMENTAL PROTECTION commenting-epa-dockets.
period, or decides to continue the AGENCY FOR FURTHER INFORMATION CONTACT:
investigation of the charge beyond the David L. Mackintosh, Air Quality
120-day period, the Special Counsel 40 CFR Part 52
Planning Unit, U.S. Environmental
shall, by the end of the 120-day period, [EPA–R01–OAR–2012–0865; A–1–FRL– Protection Agency, EPA New England
issue letters to the charging party and 9950–59–Region 1]
respondent by certified mail notifying Regional Office, 5 Post Office Square—
both parties of the Special Counsel’s Air Plan Approval; NH; Control of Suite 100, (Mail code OEP05–2), Boston,
determination. Volatile Organic Compound Emissions MA 02109–3912, tel. 617–918–1584, fax
(c) When a charging party receives a From Minor Core Activities 617–918–0668, email
letter of determination issued pursuant Mackintosh.David@epa.gov.
to paragraph (b) of this section, the AGENCY: Environmental Protection
Agency (EPA). SUPPLEMENTARY INFORMATION: In the
charging party, other than an officer of Final Rules Section of this Federal
the Department of Homeland Security, ACTION: Proposed rule.
Register, EPA is approving the State’s
may file a complaint directly before an SUMMARY: The Environmental Protection
administrative law judge in the Office of SIP submittal as a direct final rule
Agency (EPA) is proposing to approve a without prior proposal because the
the Chief Administrative Hearing State Implementation Plan (SIP)
Officer (OCAHO) within 90 days after Agency views this as a noncontroversial
revision submitted by the State of New submittal and anticipates no adverse
his or her receipt of the Special
Hampshire on October 4, 2012. The comments. A detailed rationale for the
Counsel’s letter of determination. The
revision clarifies Reasonably Available approval is set forth in the direct final
charging party’s complaint must be filed
Control Technology (RACT) rule. If no adverse comments are
with OCAHO as provided in 28 CFR
requirements as they apply to minor received in response to this action rule,
part 68.
(d) The Special Counsel’s failure to core activities of volatile organic no further activity is contemplated. If
file a complaint with respect to such compound (VOC) sources. The intended
EPA receives adverse comments, the
charge with OCAHO within the 120-day effect of this action is to propose
direct final rule will be withdrawn and
period shall not affect the right of the approval of these requirements into the
New Hampshire SIP. This action is all public comments received will be
Special Counsel to continue to addressed in a subsequent final rule
investigate the charge or later to bring a being taken in accordance with the
Clean Air Act. based on this proposed rule. EPA will
complaint before OCAHO. not institute a second comment period.
(e) The Special Counsel may seek to DATES: Written comments must be
received on or before September 14, Any parties interested in commenting
intervene at any time in any proceeding
2016. on this action should do so at this time.
brought by a charging party before
OCAHO. Please note that if EPA receives adverse
ADDRESSES: Submit your comments,
comment on an amendment, paragraph,
§ 44.304 Special Counsel acting on own identified by Docket ID No. EPA–R01– or section of this rule and if that
initiative. OAR–2012–0865 at http://
provision may be severed from the
(a) The Special Counsel may, on the www.regulations.gov, or via email to
remainder of the rule, EPA may adopt
Special Counsel’s own initiative, Mackintosh.David@epa.gov. For
comments submitted at Regulations.gov, as final those provisions of the rule that
conduct investigations respecting unfair are not the subject of an adverse
immigration-related employment follow the online instructions for
submitting comments. Once submitted, comment.
practices when there is reason to believe
that a person or other entity has engaged comments cannot be edited or removed For additional information, see the
or is engaging in such practices, and from Regulations.gov. For either manner direct final rule which is located in the
shall notify a respondent by certified of submission, the EPA may publish any Rules Section of this Federal Register.
mail of the commencement of the comment received to its public docket. Dated: August 1, 2016.
investigation. Do not submit electronically any
information you consider to be H. Curtis Spalding,
(b) The Special Counsel may file a
Confidential Business Information (CBI) Regional Administrator, EPA New England.
complaint with OCAHO when there is
reasonable cause to believe that an or other information whose disclosure is [FR Doc. 2016–19125 Filed 8–12–16; 8:45 am]
restricted by statute. Multimedia
sradovich on DSK3GMQ082PROD with PROPOSALS
unfair immigration-related employment BILLING CODE 6560–50–P
practice has occurred no more than 180 submissions (audio, video, etc.) must be
days prior to the date on which the accompanied by a written comment.
Special Counsel opened an investigation The written comment is considered the
of that practice. official comment and should include
discussion of all points you wish to
§ 44.305 Regional offices. make. The EPA will generally not
The Special Counsel, in accordance consider comments or comment
with regulations of the Attorney contents located outside of the primary
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Document Created: 2016-08-13 02:22:36
Document Modified: 2016-08-13 02:22:36
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of proposed rulemaking. | |
| Dates | Comments must be submitted on or before September 14, 2016. Comments received by mail will be considered timely if they are postmarked on or before that date. The electronic Federal Docket Management System (FDMS) will accept comments until midnight Eastern Time at the end of the day. | |
| Contact | Alberto Ruisanchez, Deputy Special Counsel, Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, 950 Pennsylvania Avenue NW., Washington, DC 20530, (202) 616-5594 (voice) or (800) 237-2515 (TTY); or Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, 950 Pennsylvania Avenue NW., Washington, DC 20530, (202) 353-9338 (voice) or (800) 237-2515 (TTY). | |
| FR Citation | 81 FR 53965 | |
| RIN Number | 1190-AA71 | |
| CFR Citation | 28
CFR
0 28 CFR 44 | |
| CFR Associated | Authority Delegations (government Agencies); Government Employees; Organization and Functions (government Agencies); Privacy; Reporting and Recordkeeping Requirements; Whistleblowing; Administrative Practice and Procedure; Equal Employment Opportunity and Immigration |
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