SUPPLEMENTARY INFORMATION:

I. Legal Authority

The Department is issuing this final rule pursuant to section 103(g) of the Immigration and Nationality Act (“INA” or “Act”), 8 U.S.C. 1103(g), as amended by the Homeland Security Act of 2002 (“HSA”), Public Law 107-296, 116 Stat. 2135 (as amended). Under the HSA, the Attorney General retains the authority to “establish such regulations, . . . issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out” the Attorney General's authorities under the INA. HSA 1102, 116 Stat. at 2274 (codified at 8 U.S.C. 1103(g)(2)). In Attorney General Order Number 6260-2025, pursuant to 28 U.S.C. 509 and 510, the Attorney General has delegated authority to issue regulations related to immigration matters within the jurisdiction of the Executive Office of Immigration Review (“EOIR”) to EOIR's Director.

II. Summary of the IFR

On October 7, 2020, the Department published an IFR amending the regulations governing OCAHO. Office of the Chief Administrative Hearing Officer, Chief Administrative Law Judge, 85 FR 63204 (Oct. 7, 2020).

The IFR revised §§ 68.2, 68.3, 68.8, 68.15, 68.26, 68.29, 68.30, 68.33, 68.55, and 68.57 in title 28 of the Code of Federal Regulations (“CFR”).^[1]

A. Chief Administrative Law Judge

The IFR amended part 68 of chapter I of title 28 of the CFR to reflect the creation of a CALJ position within OCAHO and to delineate the responsibilities and authorities of the CALJ and the Chief Administrative Hearing Officer (“CAHO”). See85 FR 63205. Specifically, the IFR provided that the CALJ will serve as an Administrative Law Judge (“ALJ”) while also serving as the direct supervisor of the other OCAHO ALJs and ALJ support staff. Id. The CAHO, in turn, will supervise the CALJ and the non-ALJ support staff. Id. In addition, in order to avoid recusal issues resulting from OCAHO's increasing size, the IFR directed that (1) if an ALJ is disqualified from adjudicating a case, the CALJ will reassign the case to another ALJ; (2) if the CALJ is disqualified from adjudicating a case, the CAHO will reassign the case to another ALJ; (3) if the CAHO is disqualified from reviewing an interlocutory order under 28 CFR 68.53 or a final order under 28 CFR 68.54, the review will be reassigned to the EOIR Director; and (4) the disqualification procedures for ALJs in 28 CFR 68.30 also apply to the CAHO conducting an administrative review under 28 CFR 68.53 or 68.54. See28 CFR 68.30.

B. Technical Changes

The IFR also made a variety of related technical edits to 28 CFR part 68.

First, the IFR amended various references to the “Chief Administrative Hearing Officer” to read “Chief Administrative Law Judge” in 28 CFR part 68 to reflect the division of responsibility described above. See, e.g.,28 CFR 68.26, 68.29.

Second, the IFR made technical changes at 28 CFR 68.15, 68.33, 68.55, and 68.57 that replaced outdated references to the former Immigration and Naturalization Service (“INS”) with references that reflect the current agency organization in the Department of Homeland Security (“DHS”). See HSA, Pub. L. 107-296, 116 Stat. 2135, as amended.

Third, the IFR italicized defined terms in 28 CFR 68.2 to improve clarity, made stylistic changes in 28 CFR 68.2, and amended a typographical error in the cross-reference at 28 CFR 68.33(c)(3)(iv).^[2]

III. Public Comments on the IFR

The Department received no comments from the public on the IFR.^[3]

IV. Provisions of the Final Rule

After receiving no public comments, the Department adopts the provisions of the IFR as final with minor technical corrections set forth in this section of the preamble.

First, the final rule further amends the definition of “pleading” in 28 CFR 68.2. The IFR defined “pleading” to include the following documents submitted to the ALJ or, when no judge is assigned, the CALJ: the complaint, the answer, any motions (including any supplements or amendments to the motions or amendments), and any permitted replies to any of the aforementioned documents. 28 CFR 68.2. Upon further consideration, the Department believes that the IFR's definition could be interpreted as inconsistent with other provisions of 28 CFR part 68.

Certain provisions of 28 CFR part 68 require specific pleadings to be filed with the CAHO rather than with an ALJ or CALJ, as set forth in the IFR's ( printed page 23169) definition of “pleading.” For example, 28 CFR 68.6(a) provides that “[a]n original and four copies of the complaint shall be filed with the [CAHO].” Moreover, 28 CFR 68.11(a) states that “[t]he [CAHO] is authorized to act on non-adjudicatory matters relating to a proceeding prior to the appointment of an [ALJ].” That provision explicitly authorizes the CAHO to act upon all motions or other similar documents related to non-adjudicatory matters, such as a motion to withdraw or substitute counsel, which a party may file before the assignment of an ALJ. Thus, logically, parties should file such documents with the CAHO, not the CALJ.

Given those regulatory provisions, the final rule revises the definition of “pleading” to reference the CAHO. This change will account for the fact that some types of pleadings listed in 28 CFR 68.2 may be—and sometimes must be—submitted to the CAHO rather than to an ALJ or the CALJ.

Second, the IFR revised the definition of “complainant” in 28 CFR 68.2, but this definition was inadvertently included in duplicate upon publication in the CFR. Compare85 FR 63206-207, with28 CFR 68.2 (Oct. 7, 2020). Accordingly, this final rule amends 28 CFR 68.2 to remove the second, superfluous entry for the definition of “complainant.”

Third, the IFR inadvertently replaced “Chief Administrative Hearing Officer” with “Chief Administrative Law Judge” in 28 CFR 68.29 instead of adding “Chief Administrative Law Judge.” Thus, this final rule amends 28 CFR 68.29 to correct this error so that, in the event of the CALJ's unavailability, the CAHO would have the authority to reassign cases to another ALJ.

V. Regulatory Review Requirements

A. Administrative Procedure Act

As in the IFR, the Department has determined that this rule is not subject to the general requirements of notice and comment and a 30-day delay in the effective date. The requirements of 5 U.S.C. 553 do not apply to the regulatory changes creating and defining the responsibilities of the CALJ position because it is a “matter relating to agency management or personnel” and a rule of “agency organization, procedure, or practice.” 5 U.S.C. 553(a)(2), (b)(A). The Department also finds good cause to issue the technical changes made in this final rule without notice and comment or a delay in effective date, as those procedures are unnecessary under 5 U.S.C. 553(b)(B), (d)(3). These changes are non-substantive; they simply reflect the current government organization as determined by Congress in 2002 and follow other similar amendments by the Department to the regulations governing EOIR. See, e.g., Retrospective Regulatory Review Under E.O. 13563, 77 FR 59567, 59568-69 (Sept. 28, 2012) (describing similar updated references to DHS in chapter V of 8 CFR).

The Department nonetheless promulgated this rule as an IFR, providing the public with opportunity for post-promulgation comment. 85 FR 63204. The Department received no comments and now issues this final rule adopting the provisions of the IFR with four technical amendments. This final rule is exempt from the 30-day delay in effective date for the reasons described above that the IFR was exempt from notice and comment requirements. 5 U.S.C 553(a)(2), (b)(A)-(B), (d)(3).

B. Regulatory Flexibility Act

The Department has reviewed this rule in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that this final rule will not have a significant economic impact on a substantial number of small entities as defined in 5 U.S.C. 601(6).

C. Unfunded Mandates Reform Act of 1995

This final rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted annually for inflation), and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, codified at 2 U.S.C. 1501 et seq.

D. Congressional Review Act

Reports to Congress and the Government Accountability Office (“GAO”) specified by 5 U.S.C. 801 are not required for this rule. This final rule does not fall under the definition of a “major rule” or “rule” as defined in section 804 of the Congressional Review Act. 5 U.S.C. 804(2)-(3). As discussed in Section V.C. of this preamble, this rule will not result in an annual effect on the economy of $100 million or more and will not result in major cost or price increases or have significant adverse effects on United States-based enterprises. 5 U.S.C. 804(2). Further, this action pertains to agency management or personnel and is a rule of agency organization that does not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). Accordingly, it is not a “major rule” or “rule” as those terms are defined in 5 U.S.C. 804(2)−(3) and such reporting to Congress and the GAO is not required.

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

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of using the best available methods to quantify costs and benefits, and of reducing costs, harmonizing rules, and promoting flexibility.

Because this final rule is limited to agency organization, management, or personnel matters, it is not subject to review by the Office of Management and Budget pursuant to section 3(d)(3) of Executive Order 12866. Further, because this rule is one of internal organization, management, or personnel, it is not subject to the requirements of Executive Order 13563.

F. Executive Order 13132 (Federalism)

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

G. Executive Order 12988 (Civil Justice Reform)

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

H. Paperwork Reduction Act of 1995

This rule does not propose a new collection or revisions to an existing “collection of information” as that term is defined under the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320. ( printed page 23170)

I. Executive Order 14219 (Ensuring Lawful Governance and Implementing the President's `Department of Government Efficiency' Deregulatory Initiative)

This final rule is “an[ ] action related to a[n] . . . immigration-related function of the United States” and is therefore exempt from the requirements of Executive Order 14219 under section 7(a) of that Order.

J. Executive Order 14294 (Overcriminalization of Federal Regulations)

Executive Order 14294 requires agencies promulgating regulations with criminal regulatory offenses potentially subject to criminal enforcement to explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to each element of those offenses. This rule does not adopt a criminal regulatory offense and is thus exempt from Executive Order 14924 requirements.

Accordingly, the interim rule amending 28 CFR part 68 which was published at 85 FR 63204 on October 7, 2020, is adopted as final with the following change:

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

Authority: 5 U.S.C. 301, 554, 557(b); 8 U.S.C. 1103, 1324a, 1324b, and 1324c; 28 U.S.C. 509, 510, and 2461 note; and Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.

2. Amend §  68.2 by:

a. Removing the second entry for the definition of “Complainant”; and

b. Revising the definition of “Pleading”.

The revision reads as follows:

3. Revise § 68.29 to read as follows:

91 FR 23168