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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: February 26, 2008 (Volume 73, Number 38)]
[Rules and Regulations]               
[Page 10130-10137]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26fe08-2]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 270, 274a, and 280

RIN 1653-AA39

DEPARTMENT OF JUSTICE

28 CFR Part 68

Executive Office for Immigration Review

8 CFR Part 1274a

RIN 1125-AA61
[EOIR Docket No. 165F; A.G. Order No. 2944-2008]

 
Inflation Adjustment for Civil Monetary Penalties Under Sections 
274A, 274B, and 274C of the Immigration and Nationality Act

AGENCIES: U.S. Immigration and Customs Enforcement, DHS; Executive 
Office for Immigration Review, Justice.

ACTION: Final rules.

-----------------------------------------------------------------------

SUMMARY: As required by the Federal Civil Penalties Inflation 
Adjustment Act of 1990, as amended by the Debt Collection Improvement 
Act of 1996, the Department of Homeland Security and the Department of 
Justice are

[[Page 10131]]

publishing these rules adjusting for inflation the civil monetary 
penalties assessed or enforced by those two Departments under sections 
274A, 274B, and 274C of the Immigration and Nationality Act (INA). The 
adjusted civil money penalties are calculated according to the specific 
formula laid out by law, and will be effective for violations occurring 
on or after the effective date of these rules.

DATES: These rules are effective March 27, 2008.

FOR FURTHER INFORMATION CONTACT: Concerning amendments to 8 CFR parts 
270 and 274a: Marissa Hernandez, National Program Manager for Worksite 
Enforcement, Office of Investigations, 425 I Street, NW., Washington, 
DC 20536, telephone number (202) 307-0071 (not a toll free call).
    Concerning amendments made to 8 CFR part 1274a and 28 CFR part 68: 
Kevin J. Chapman, Acting General Counsel, Executive Office for 
Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, 
Virginia 22041, telephone number (703) 305-0470 (not a toll free call).

SUPPLEMENTARY INFORMATION:

I. Background

    The Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. 
L. 101-410 (Adjustment Act), 28 U.S.C. 2461 note, provides for the 
regular evaluation of civil monetary penalties to ensure that they 
continue to maintain their deterrent effect and that penalty amounts 
due the Federal Government are properly accounted for and collected.
    On April 26, 1996, the President signed into law the Omnibus 
Consolidated Rescissions and Appropriations Act of 1996, Pub. L. 104-
134. Section 31001 of that Act, also known as the Debt Collection 
Improvement Act of 1996 (Improvement Act), amended the Adjustment Act 
to provide more effective tools for government-wide collection of 
delinquent debt. Section 31001(s)(1) of the Improvement Act added a new 
section 7 to the Adjustment Act providing that any increase in a civil 
monetary penalty made pursuant to this Act shall apply only to 
violations that occur after the date the increase takes effect. The 
Improvement Act provides that the adjustments for inflation required by 
the Adjustment Act should be made every four years.
    The amounts of the adjustments are determined according to a 
detailed formula specified in the Adjustment Act, incorporating a 
``cost-of-living adjustment'' that is defined in section 5(b) of the 
Adjustment Act as being the percentage (if any) for each civil monetary 
penalty by which:
    (1) The Consumer Price Index for the month of June of the calendar 
year preceding the adjustment, exceeds
    (2) the Consumer Price Index for the month of June of the calendar 
year in which the amount of such civil monetary penalty was last set or 
adjusted pursuant to law.
    In addition, section 5(a) of the Adjustment Act provides that any 
increase so determined under this formula is subject to rounding under 
the following specified standards:
     For penalties less than or equal to $100, increases are 
rounded to multiples of $10;
     For penalties greater than $100 but less than or equal to 
$1,000, increases are rounded to multiples of $100;
     For penalties greater than $1,000 but less than or equal 
to $10,000, increases are rounded to multiples of $1,000;
     For penalties greater than $10,000 but less than or equal 
to $100,000, increases are rounded to multiples of $5,000;
     For penalties greater than $100,000 but less than or equal 
to $200,000, increases are rounded to multiples of $10,000; and
     For penalties greater than $200,000, increases are rounded 
to multiples of $25,000.
    Section 31001(s)(2) of the Improvement Act also provides that the 
first adjustment of a civil monetary penalty made pursuant to these 
procedures may not exceed 10 percent of the penalty.

II. Civil Penalties Imposed After Hearing Before an Administrative Law 
Judge

    These final rules revise the current regulations implementing three 
different sections in the Immigration and Nationality Act (INA) that 
provide for the imposition of civil money penalties to be imposed for 
violations of the law, each of which include provisions for a hearing 
before an administrative law judge (ALJ) to adjudicate cases and set 
the amount of the penalty. The Department of Homeland Security (DHS) 
has enforcement responsibilities for two of these civil penalty 
provisions,\1\ while the Civil Rights Division of the Department of 
Justice has enforcement responsibilities for the third.
---------------------------------------------------------------------------

    \1\ Although the enforcement of these provisions of the 
immigration laws was initially assigned to the Attorney General, and 
had been delegated to the former Immigration and Naturalization 
Service (INS), the Homeland Security Act abolished the former INS 
and transferred its functions to DHS, effective March 1, 2003. See 6 
U.S.C. 251, 291.
---------------------------------------------------------------------------

    Section 274A of the INA (8 U.S.C. 1324a). Section 274A provides for 
imposition of civil penalties for various specified unlawful acts 
pertaining to the employment eligibility verification process (Form I-
9) and the employment of unauthorized aliens. These penalties cover, 
among other things, the knowing employment of unauthorized aliens and 
the failure to comply with the employment verification requirements 
relating to completion of Form I-9.
    U.S. Immigration and Customs Enforcement (ICE), in DHS, conducts 
the investigations and initiates the process for imposing civil money 
penalties with respect to employer sanctions under section 274A of the 
INA and 8 CFR part 274a.
    Section 274B of the INA (8 U.S.C. 1324b). Section 274B provides for 
imposition of civil penalties for specified actions constituting 
immigration-related unfair employment practices. These penalties cover, 
among other things, discrimination against job applicants or employees 
based on nationality or citizenship status, and violations of the law 
by an employer who refuses to accept permissible documents presented by 
an employee in compliance with the Form I-9 requirements (for example, 
by insisting that an employee must present a so-called ``green card'' 
even though the employee has already presented proper documentation to 
complete Form I-9).
    The Office of Special Counsel for Immigration-Related Unfair 
Employment Practices (OSC), a component within the Civil Rights 
Division of the Department of Justice, is responsible for investigating 
alleged violations of section 274B of the INA pertaining to unfair 
immigration-related employment practices (called ``charges''). See 28 
CFR part 44. After investigating the charges, OSC is authorized to file 
a complaint to initiate a civil penalty proceeding. The law also 
includes a private action provision allowing the person making a charge 
to file a complaint directly if OSC has not filed a complaint within 
120 days after receiving the charges.
    Section 274C of the INA (8 U.S.C. 1324c). Section 274C provides for 
imposition of civil penalties for specified actions relating to 
immigration-related document fraud.
    ICE conducts the investigations and initiates the process for 
imposing civil money penalties with respect to document fraud under 
section 274C of the INA and 8 CFR part 270.
    Hearings for Adjudicating Complaints and Imposing Penalties. Each 
of these

[[Page 10132]]

three sections of the INA provides that, when administrative hearings 
are necessary to adjudicate the complaints and impose the civil 
penalties, the hearings are to be conducted before an ALJ. Accordingly, 
the Attorney General established the Office of the Chief Administrative 
Hearing Officer (OCAHO), an office within the Executive Office for 
Immigration Review (EOIR) in the Department of Justice, to conduct the 
ALJ hearings for civil penalty actions under each of these three 
statutes. See 28 CFR part 68.
    ALJ hearings are conducted in every case under section 274B of the 
INA. However, an ALJ hearing is conducted under sections 274A and 274C 
of the INA only if the subject of the civil penalty proceeding requests 
an administrative hearing, after the issuance of ICE's notice of intent 
to fine describing the violations and stating the intended amount of 
the civil penalties. If the subject does not submit a request for an 
ALJ hearing within the time allowed, then the civil penalties are 
imposed as determined by ICE. If the subject does make a timely request 
for a hearing, then an ALJ adjudicates the alleged violations and 
issues a decision, including a determination of the amount of the civil 
penalties imposed for any violations found, pursuant to the rules in 28 
CFR part 68. An ALJ decision in a case arising under section 274A or 
274C of the INA is subject to review by the Chief Administrative 
Hearing Officer and the Attorney General, as provided in 28 CFR 68.54 
and 68.55.
    Because both DHS and EOIR can impose penalties relating to employer 
sanctions and document fraud cases (sections 274A and 274C, 
respectively), the current regulations of both Departments specify the 
range of penalties applicable in these kinds of cases. As noted above, 
the minimum and maximum civil penalty amounts for each violation will 
necessarily be the same whether the penalties are imposed by DHS 
without a hearing, or by OCAHO after an administrative hearing. See 8 
CFR 274a.10 and 270.3; 28 CFR 68.52(c) and (e).

III. Adjustment of Civil Money Penalties

    Under the Adjustment Act, as amended, federal agencies are 
obligated to adopt, by regulation, revised amounts for statutory civil 
penalties in order to account for inflation. These regulations carry 
out that statutory mandate. Since the statutory formula is extremely 
detailed, leaving no discretion as to setting the specific amounts, 
these rules implement the new inflation adjustments for the civil 
penalties without the need for a notice and comment period.
    Pursuant to the authority of the Adjustment Act, the Department of 
Justice has previously adjusted the civil money penalties for 
inflation, increasing the specific amounts stated in sections 274A, 
274B, and 274C of the INA. The amounts of the civil money penalties 
currently being imposed under these provisions were last adjusted for 
inflation in 1999. See 64 FR 7066 (Feb. 12, 1999) (amending 28 CFR part 
68); 64 FR 47099 (Aug. 30, 1999) (amending 8 CFR parts 270 and 274a, 
among others). Since then, as noted, the division of responsibilities 
between the Attorney General and the Secretary of DHS requires action 
by both Departments in order to effectuate a further adjustment of the 
civil penalties, since the current civil penalty amounts are codified 
in the implementing regulations of both Departments.
    In these final rules, the Secretary is amending 8 CFR parts 274a 
and 270 of the DHS regulations to incorporate the revised schedule of 
civil penalties, as adjusted for inflation according to the statutory 
formula described above.
    At the same time, the Attorney General is amending 28 CFR part 68 
of the Justice Department regulations (the rules governing ALJ 
proceedings in OCAHO) to make conforming changes reflecting the 
adjusted schedule of civil penalties.
    The Attorney General is also revising a provision in the EOIR 
regulations, 8 CFR part 1274a.10, to eliminate the current language and 
to substitute a cross-reference to the existing DHS regulations in 8 
CFR part 274a and the existing OCAHO regulations in 28 CFR part 68. 
Section 1274a.10, which simply reproduces the existing DHS regulations 
at 8 CFR 274a.10, was promulgated in 2003, in connection with the 
transfer of authority from the former INS to DHS. To ensure that all 
relevant authority relating to the shared responsibilities was 
preserved, the Attorney General at that time duplicated in their 
entirety the regulations in 8 CFR part 274a (which were being 
transferred to DHS) into the then-new part 1274a so that these 
provisions would also continue to be part of the Attorney General's 
regulations. See 68 FR 9824 (Feb. 28, 2003). However, since the penalty 
provisions in section 1274a.10 do not add anything to the existing 
regulatory provisions, the Attorney General is now revising section 
1274a.10 to eliminate the duplicative language and to substitute new 
language cross-referencing the existing DHS regulations in 8 CFR 
274a.10 and the existing OCAHO regulations in 28 CFR part 68.
    As noted, the current amounts of the civil money penalties under 
these three statutory provisions were last adjusted, by regulation, in 
1999. Pursuant to section 5(b) of the Adjustment Act, the cost of 
living adjustment is calculated with reference to the Consumer Price 
Index for all urban consumers for June 1999 (497.9) and for June 2007 
(the year preceding the current inflation adjustments) (624.1). This 
works out to an inflation adjustment of 25.35 percent. Pursuant to the 
statutory formula specified in the Adjustment Act, the civil money 
penalties under sections 274A, 274B, and 274C of the INA are being 
adjusted as indicated in the chart below.
    It should be noted that when the inflation adjustment formula was 
applied in 1999, not all of the penalties were affected. A few remained 
unchanged because the inflation adjustment when the calculations were 
last made in 1999 was too small to warrant an inflation increase under 
the statutory rounding formula set forth in the Adjustment Act. 
Nonetheless, for the convenience of the reader, we have reproduced 
those provisions in the chart.
    Two sets of penalties were not adjusted before because they were 
below the threshold for an inflation adjustment in 1999, the last time 
the penalties were adjusted for inflation, but they are being adjusted 
by this rule:
     Section 403(a)(4)(C)(ii) of the Illegal Immigration Reform 
and Immigrant Responsibility Act, Pub. L. 104-208, Div. C (codified at 
8 U.S.C. 1324a note and described in 28 CFR 68.52(c)(6)) provides for a 
civil penalty of not less than $500 and not more than $1,000 for an 
employer participating in the electronic employment eligibility 
verification program who fails to notify DHS that it ultimately was 
unable to confirm an employee's employment eligibility.
     Section 274C(a) of the INA was amended in 1997 to provide 
for a civil penalty of not less than $250 and not exceeding $2,000 in 
two additional circumstances: paragraph (5) covers preparing, filing, 
or assisting others in preparing or filing falsely made or fraudulent 
documents or each proscribed activity; and paragraph (6) relates to 
presenting a travel document to board an air or sea carrier but then 
failing to present that document upon arrival at the U.S. port of 
entry.
    Because these penalties are being adjusted for the first time, the 
penalties are being increased by ten percent, the maximum allowable 
increase for initial increases provided for by section 31001(s)(2) of 
the Improvement Act. In

[[Page 10133]]

addition, this rule makes a conforming change to 8 CFR 280.53, which 
references the second set of penalties, since these penalties are now 
being adjusted.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      CPI
                                              Current                                factor      Raw                                 Rounded    Adjusted
            Statute               Min/  Max   penalty      Year last  adjusted       (2008)    increase           Rounder            increase   penalty
                                                                                   (percent)    (2008)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Hiring, recruiting and referral employer sanctions, first order
--------------------------------------------------------------------------------------------------------------------------------------------------------
8 U.S.C. 1324a(e)(4)(A)(i).....  Min.......        275  1999.....................      25.35         70  100......................        100        375
8 CFR 274a.10(b)(1)(ii)(A).....
 8 U.S.C. 1324a(e)(4)(A)(i)....  Max.......      2,200  1999.....................      25.35        558  1,000....................      1,000      3,200
8 CFR 274a.10(b)(1)(ii)(A).....
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Hiring, recruiting and referral employer sanctions, second order
--------------------------------------------------------------------------------------------------------------------------------------------------------
8 U.S.C. 1324a(e)(4)(A)(ii)....  Min.......      2,200  1999.....................      25.35        558  1,000....................      1,000      3,200
8 CFR 274a.10(b)(1)(ii)(B).....
8 U.S.C. 1324a(e)(4)(A)(ii)....  Max.......      5,500  1999.....................      25.35      1,394  1,000....................      1,000      6,500
8 CFR 274a.10(b)(1)(ii)(B).....
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Hiring, recruiting and referral employer sanctions, subsequent order
--------------------------------------------------------------------------------------------------------------------------------------------------------
8 U.S.C. 1324a(e)(4)(A)(iii)...  Min.......      3,300  1999.....................      25.35        836  1,000....................      1,000      4,300
8 CFR 274a.10(b)(1)(ii)(C).....
 8 U.S.C. 1324a(e)(4)(A)(iii)..  Max.......     11,000  1999.....................      25.35      2,788  5,000....................      5,000     16,000
8 CFR 274a.10(b)(1)(ii)(C).....
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Paperwork violation
--------------------------------------------------------------------------------------------------------------------------------------------------------
 8 U.S.C. 1324a(e)(5)..........  Min.......        110  1999.....................      25.35         28  100......................          0        110
8 CFR 274a.10(b)(2)............
28 CFR 68.52(c)(5).............
 8 U.S.C. 1324a(e)(5)..........  Max.......      1,100  1999.....................      25.35        279  1,000....................          0      1,100
8 CFR 274a.10(b)(2)............
--------------------------------------------------------------------------------------------------------------------------------------------------------
   Violation relating to participating employer's failure to notify DHS of final nonconfirmation of employee's employment eligibility [Not previously
                                                                        adjusted]
--------------------------------------------------------------------------------------------------------------------------------------------------------
 8 U.S.C. 1324a (note).........  ..........        500  enacted in 1997..........      29.97        150  10% cap by statute.......         50        550
28 CFR 68.52(c)(6).............
 8 U.S.C. 1324a (note).........  ..........      1,000  enacted in 1997..........      29.97        300  10% cap by statute.......        100      1,100
28 CFR 68.52(c)(6).............
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Unlawful employment of aliens, per person, first order
--------------------------------------------------------------------------------------------------------------------------------------------------------
 8 U.S.C. 1324a(e)(4)(A)(i)....  Min.......        275  1999.....................      25.35         70  100......................        100        375
28 CFR 68.52(c)(1)(i)..........
 8 U.S.C. 1324a(e)(4)(A)(i)....  Max.......      2,200  1999.....................      25.35        558  1,000....................      1,000      3,200
28 CFR 68.52(c)(1)(i)..........
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Unlawful employment of aliens, per person, second order
--------------------------------------------------------------------------------------------------------------------------------------------------------
8 U.S.C. 1324a(e)(4)(A)(ii)....  Min.......      2,200  1999.....................      25.35        558  1,000....................      1,000      3,200
28 CFR 68.52(c)(1)(ii).........
8 U.S.C. 1324a(e)(4)(A)(ii)....  Max.......      5,500  1999.....................      25.35      1,394  1,000....................      1,000      6,500
28 CFR 68.52(c)(1)(ii).........
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Unlawful employment of aliens, per person, subsequent order
--------------------------------------------------------------------------------------------------------------------------------------------------------
8 U.S.C. 1324a(e)(4)(A)(ii)....  Min.......      3,300  1999.....................      25.35        836  1,000....................      1,000      4,300
28 CFR 68.52(c)(1)(ii).........
8 U.S.C. 1324a(e)(4)(A)(iii)...  Max.......     11,000  1999.....................      25.35      2,788  5,000....................      5,000     16,000
28 CFR 68.52(c)(1)(iii)........
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Violation/prohibition of indemnity bonds
--------------------------------------------------------------------------------------------------------------------------------------------------------
8 U.S.C. 1324a(g)(2)...........  ..........      1,100  1999.....................      25.35        279  1,000....................          0      1,100
8 CFR 274a.8(b)................
28 CFR 68.52(c)(7).............
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                    Document fraud, first order--for violations described in 8 U.S.C. 1324c(a)(1)-(4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
8 U.S.C. 1324c(d)(3)(A)........  ..........        275  1999.....................      25.35         70  100......................        100        375
8 CFR 270.3(b)(1)(ii)..........

[[Page 10134]]


8 U.S.C. 1324c(d)(3)(A)........  ..........      2,200  1999.....................      25.35        558  1,000....................      1,000      3,200
8 CFR 270.3(b)(1)(ii)..........
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                 Document fraud, subsequent order--for violations described in 8 U.S.C. 1324c(a)(1)-(4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
8 U.S.C. 1324c(d)(3)(B)........  ..........      2,200  1999.....................      25.35        558  1,000....................      1,000      3,200
8 CFR 270.3(b)(1)(ii)..........
8 U.S.C. 1324c(d)(3)(B)........  ..........      5,500  1999.....................      25.35      1,394  1,000....................      1,000      6,500
8 CFR 270.3(b)(1)(ii)..........
--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Document fraud, first order--for violations described in 8 U.S.C. 1324c(a)(5)-(6) [Not previously adjusted.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
8 U.S.C. 1324c(d)(3)(A)........  ..........        250  enacted in 1997..........      29.97         75  10% cap by statute.......         25        275
8 CFR 270.3(b)(1)(ii)..........
8 U.S.C. 1324c(d)(3)(A)........  ..........      2,000  enacted in 1997..........      29.97        599  10% cap by statute.......        200      2,200
8 CFR 270.3(b)(1)(ii)..........
--------------------------------------------------------------------------------------------------------------------------------------------------------
                    Document fraud, subsequent order--for violations described in 8 U.S.C. 1324c(a)(5)-(6) [Not previously adjusted.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
8 U.S.C. 1324c(d)(3)(B)........  ..........      2,000  enacted in 1997..........      29.97        599  10% cap by statute.......        200      2,200
8 CFR 270.3(b)(1)(ii)..........
8 U.S.C. 1324c(d)(3)(B)........  ..........      5,000  enacted in 1997..........      29.97      1,498  10% cap by statute.......        500      5,500
8 CFR 270.3(b)(1)(ii)..........
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                        Unfair immigration-related employment practices, per person, first order
--------------------------------------------------------------------------------------------------------------------------------------------------------
8 U.S.C. 1324b(g)(2)(B)(iv)(I).  Min.......        275  1999.....................      25.35         70  100......................        100        375
28 CFR 68.52(d)(1)(viii).......
8 U.S.C. 1324b(g)(2)(B)(iv)(I).  Max.......      2,200  1999.....................      25.35        558  1,000....................      1,000      3,200
28 CFR 68.52(d)(1)(viii).......
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                        Unfair immigration-related employment practices, per person, second order
--------------------------------------------------------------------------------------------------------------------------------------------------------
8 U.S.C. 1324b(g)(2)(B)(iv)(II)  Min.......      2,200  1999.....................      25.35        558  1,000....................      1,000      3,200
28 CFR 68.52(d)(1)(ix).........
8 U.S.C. 1324b(g)(2)(B)(iv)(II)  Max.......      5,500  1999.....................      25.35      1,394  1,000....................      1,000      6,500
28 CFR 68.52(d)(1)(ix).........
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Unfair immigration-related employment practices, per person, subsequent order
--------------------------------------------------------------------------------------------------------------------------------------------------------
8 U.S.C.                         Min.......      3,300  1999.....................      25.35        836  1,000....................      1,000      4,300
 1324b(g)(2)(B)(iv)(III).
28 CFR 68.52(d)(1)(x)..........
8 U.S.C.                         Max.......     11,000  1999.....................      25.35      2,788  5,000....................      5,000     16,000
 1324b(g)(2)(B)(iv)(III).
28 CFR 68.52(d)(1)(x)..........
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Unfair immigration-related employment practices, document abuse
--------------------------------------------------------------------------------------------------------------------------------------------------------
8 U.S.C. 1324b(g)(2)(B)(iv)(IV)  Min.......        110  1999.....................      25.35         28  100......................          0        110
28 CFR 68.52(d)(1(xii).........
8 U.S.C. 1324b(g)(2)(B)(iv)(IV)  Max.......      1,100  1999.....................      25.35        279  1,000....................          0      1,100
28 CFR 68.52(d)(1(xii))........
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Again, these changes are being made pursuant to a detailed 
statutory formula that does not allow for any discretion or any 
variances from the results calculated. The higher civil penalty amounts 
will be effective for violations occurring on or after the effective 
date of these rules. For violations occurring prior to the effective 
date of these rules, the civil penalty amounts set forth in the current 
regulations will continue to apply.\2\
---------------------------------------------------------------------------

    \2\ The current regulations, which implemented the last set of 
inflation adjustments in 1999, also include the ranges of civil 
penalty amounts for violations that occurred prior to the 
adjustment; that is, for violations that occurred prior to September 
29, 1999, as well as violations that occurred after the 1999 
adjustments were adopted. At this point, the revised regulations 
being adopted in these final rules do not set forth the civil 
penalty amounts for violations that occurred prior to the adoption 
of the adjusted civil penalty schedules in 1999, more than 8 years 
ago. Title 28 of the United States Code contains a ``general'' four-
year statute of limitations for civil actions where no precise 
statute of limitations has been specified. 28 U.S.C. 1658. In any 
event, the amounts of the civil penalties for violations occurring 
prior to the adoption of the 1999 regulations have already been 
codified in the regulations as they were in effect from 1999 until 
the day before the effective date of these new rules.
---------------------------------------------------------------------------

    These rules fulfill the obligations of the Secretary and the 
Attorney General under the Adjustment Act, as amended, to adjust for 
inflation the civil monetary penalties under these three statutory 
provisions for which both Departments

[[Page 10135]]

have implementing responsibilities. In separate rulemaking actions in 
the future, the Secretary will be adjusting other civil money penalties 
that are within the responsibility of DHS, and the Attorney General 
will be adjusting other civil money penalties that are within the 
responsibility of the Department of Justice. See, e.g., 8 CFR 280.53; 
28 CFR part 85.

 IV. Regulatory Analyses

Administrative Procedure Act, 5 U.S.C. 553

    The Secretary and the Attorney General find that good cause exists 
under 5 U.S.C. 553(b)(3)(B) for immediate implementation of these final 
rules without prior notice and comment. These rules are a 
nondiscretionary ministerial action to conform the amount of civil 
penalties assessed or enforced by the Department of Homeland Security 
and the Department of Justice according to the statutorily mandated 
ranges as adjusted for inflation. The Secretary and the Attorney 
General are under a legal obligation to adjust these civil penalties 
for inflation. The calculation of these inflation adjustments follows 
the specific mathematical formula set forth in section 5 of the 
Adjustment Act.

Regulatory Flexibility Act

    The Secretary and the Attorney General, in accordance with the 
Regulatory Flexibility Act, 5 U.S.C. 605(b), have reviewed these rules 
and by approving them certify that they will not have a significant 
economic impact on a substantial number of small entities. Only those 
entities which are determined to have violated Federal law and 
regulations would be affected by the inflation adjustments made by 
these rules, pursuant to the statutory requirement under the Adjustment 
Act, for the penalties imposed under sections 274A, 274B, and 274C of 
the INA.

Executive Order 12866--Regulatory Planning and Review

    These rules have been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Secretary and the Attorney General have determined that these rules are 
not ``significant regulatory actions'' under Executive Order 12866, 
section 3(f), Regulatory Planning and Review, and accordingly these 
rules have not been reviewed by the Office of Management and Budget.

Executive Order 13132--Federalism

    These rules will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with Executive Order 
13132, it is determined that these rules do not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

    These rules meet the applicable standards set forth in sections 
3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

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

Paperwork Reduction Act

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

List of Subjects

8 CFR Part 270

    Administrative practice and procedure, Immigration, Law 
enforcement.

8 CFR Part 274a

    Administrative practice and procedure, Immigration, Law 
enforcement.

8 CFR Part 280

    Administrative practice and procedure, Immigration, Law 
enforcement.

8 CFR Part 1274a

    Administrative practice and procedure, Immigration.

28 CFR Part 68

    Administrative practice and procedure, Aliens, Citizenship and 
naturalization, Civil Rights, Discrimination in employment, Employment, 
Equal employment opportunity, Immigration, Nationality, Non-
discrimination.

Department of Homeland Security

8 CFR Chapter I

0
Accordingly, for the reasons set forth in the preamble and pursuant to 
my authority as Secretary of Homeland Security, parts 270, 274a, and 
280 of chapter I of title 8 of the Code of Federal Regulations are 
amended as follows:

PART 270--PENALTIES FOR DOCUMENT FRAUD

0
1. The authority citation for part 270 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, and 1324c; Pub. L. 101-410, 104 
Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.
0
2. Section 270.3 is amended by revising paragraphs (b)(1)(ii)(A) and 
(b)(1)(ii)(B), and adding paragraphs (b)(1)(ii)(C) and (b)(1)(ii)(D), 
to read as follows:


Sec.  270.3  Penalties.

* * * * *
    (b) * * *
    (1) * * *
    (ii) * * *
    (A) First offense under section 274C(a)(1) through (a)(4). Not less 
than $275 and not exceeding $2,200 for each fraudulent document or each 
proscribed activity described in section 274C(a)(1) through (a)(4) of 
the Act before March 27, 2008, and not less than $375 and not exceeding 
$3,200 for each fraudulent document or each proscribed activity on or 
after March 27, 2008.
    (B) First offense under section 274C(a)(5) or (a)(6). Not less than 
$250 and not exceeding $2,000 for each fraudulent document or each 
proscribed activity described in section 274C(a)(5) or (a)(6) of the 
Act before March 27, 2008, and not less than $275 and not exceeding 
$2,200, for each fraudulent document or each proscribed activity on or 
after March 27, 2008.
    (C) Subsequent offenses under section 274C(a)(1) through (a)(4). 
Not less than $2,200 and not more than $5,500 for

[[Page 10136]]

each fraudulent document or each proscribed activity described in 
section 274C(a)(1) through (a)(4) of the Act before March 27, 2008, and 
not less than $3,200 and not exceeding $6,500, for each fraudulent 
document or each proscribed activity occurring on or after March 27, 
2008.
    (D) Subsequent offenses under section 274C(a)(5) or (a)(6). Not 
less than $2,000 and not more than $5,000 for each fraudulent document 
or each proscribed activity described in section 274C(a)(5) or (a)(6) 
of the Act before March 27, 2008, and not less than $2,200 and not 
exceeding $5,500, for each fraudulent document or each proscribed 
activity occurring on or after March 27, 2008.
* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
3. The authority citation for part 274a is revised to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2; Pub. L. 
101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 
1321.

0
4. Section 274a.10 is amended by revising paragraphs (b)(1)(ii)(A), 
(b)(1)(ii)(B), and (b)(1)(ii)(C) to read as follows:


Sec.  274a.10  Penalties.

* * * * *
    (b) * * *
    (1) * * *
    (ii) * * *
    (A) First offense--not less than $275 and not more than $2,200 for 
each unauthorized alien with respect to whom the offense occurred 
before March 27, 2008, and not less than $375 and not exceeding $3,200, 
for each unauthorized alien with respect to whom the offense occurred 
occurring on or after March 27, 2008;
    (B) Second offense--not less than $2,200 and not more than $5,500 
for each unauthorized alien with respect to whom the second offense 
occurred before March 27, 2008, and not less than $3,200 and not more 
than $6,500, for each unauthorized alien with respect to whom the 
second offense occurred on or after March 27, 2008; or
    (C) More than two offenses--not less than $3,300 and not more than 
$11,000 for each unauthorized alien with respect to whom the third or 
subsequent offense occurred before March 27, 2008 and not less than 
$4,300 and not exceeding $16,000, for each unauthorized alien with 
respect to whom the third or subsequent offense occurred on or after 
March 27, 2008; and
* * * * *

PART 280--IMPOSITION AND COLLECTION OF FINES

0
5. The authority citation for part 280 continues to read as follows:

    Authority: 8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1253, 1281, 
1283, 1284, 1285, 1286, 1322, 1323, and 1330; 66 Stat. 173, 195, 
197, 201, 203, 212, 219, 221-223, 226, 227, 230; Pub. L. 101-410, 
104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.


Sec.  280.53  [Amended].

0
6. Section 280.53 is amended by removing and reserving paragraph 
(d)(3).

Department of Justice

0
Accordingly, for the reasons set forth in the preamble and pursuant to 
my authority as Attorney General, part 1274a of chapter V of title 8 of 
the Code of Federal Regulations and part 68 of chapter I of title 28 of 
the Code of Federal Regulations are amended as follows:

8 CFR Chapter V

PART 1274a--CONTROL OF EMPLOYMENT OF ALIENS

0
1. The authority citation for part 1274a is revised to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a.


0
2. Section 1274a.10 is revised to read as follows:


Sec.  1274a.10  Penalties.

    The regulations pertaining to the imposition of penalties for 
violations of the provisions of section 274A of the Immigration and 
Nationality Act are contained in 8 CFR part 274a and 28 CFR part 68.

28 CFR Chapter I

PART 68--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE 
HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING 
ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF ALIENS, UNFAIR IMMIGRATION-
RELATED EMPLOYMENT PRACTICES, AND DOCUMENT FRAUD

0
3. The authority citation is revised to read as follows:

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


0
4. In Sec.  68.52, revise paragraphs (c)(1)(i), (c)(1)(ii), 
(c)(1)(iii), (c)(6), (d)(1)(viii), (d)(1)(ix), (d)(1)(x), (e)(1)(i), 
and (e)(1)(ii) and add paragraphs (e)(1)(iii) and (iv) to read as 
follows:


Sec.  68.52  Final order of the Administrative Law Judge.

* * * * *
    (c) * * *
    (1) * * *
    (i) Not less than $275 and not more than $2,200 for each 
unauthorized alien with respect to whom there was a violation of either 
such paragraph occurring before March 27, 2008; not less than $375 and 
not more than $3,200 for each unauthorized alien with respect to whom 
there was a violation of either such paragraph occurring on or after 
March 27, 2008;
    (ii) In the case of a person or entity previously subject to one 
final order under this paragraph (c)(1), not less than $2,200 and not 
more than $5,500 for each unauthorized alien with respect to whom there 
was a violation of either such paragraph occurring before March 27, 
2008, and not less than $3,200 and not more than $6,500 for each 
unauthorized alien with respect to whom there was a violation of either 
such paragraph occurring on or after March 27, 2008; or
    (iii) In the case of a person or entity previously subject to more 
than one final order under paragraph (c)(1) of this section, not less 
than $3,300 and not more than $11,000 for each unauthorized alien with 
respect to whom there was a violation of each such paragraph occurring 
before March 27, 2008, and not less than $4,300 and not more than 
$16,000 for each unauthorized alien with respect to whom there was a 
violation of each such paragraph occurring on or after March 27, 2008.
* * * * *
    (6) With respect to a violation of section 274A(a)(1)(B) of the INA 
where a person or entity participating in a pilot program has failed to 
provide notice of final nonconfirmation of employment eligibility of an 
individual to the Attorney General as required by Pub. L. 104-208, Div. 
C, section 403(a)(4)(C), 110 Stat. 3009, 3009-661 (1996) (codified at 8 
U.S.C. 1324a (note)), the final order under this paragraph shall 
require the person or entity to pay a civil penalty in an amount of not 
less than $500 and not more than $1,000 for each individual with 
respect to whom such violation occurred before March 27, 2008, and not 
less than $550 and not more than $1,100 for each individual with 
respect to whom such violation occurred on or after March 27, 2008.
* * * * *
    (d) * * *
    (1) * * *
* * * * *

[[Page 10137]]

    (viii) Except as provided in paragraph (d)(1)(xii) of this section, 
to pay a civil penalty of not less than $275 and not more than $2,200 
for each individual discriminated against before March 27, 2008, and 
not less than $375 and not more than $3,200 for each individual 
discriminated against on or after March 27, 2008;
    (ix) Except as provided in paragraph (d)(1)(xii) of this section, 
in the case of a person or entity previously subject to a single final 
order under section 274B(g)(2) of the INA, to pay a civil penalty of 
not less than $2,200 and not more than $5,500 for each individual 
discriminated against before March 27, 2008, and not less than $3,200 
and not more than $6,500 for each individual discriminated against on 
or after March 27, 2008;
    (x) Except as provided in paragraph (d)(1)(xii) of this section, in 
the case of a person or entity previously subject to more than one 
final order under section 274B(g)(2) of the INA, to pay a civil penalty 
of not less than $3,300 and not more than $11,000 for each individual 
discriminated against before March 27, 2008, and not less than $4,300 
and not more than $16,000 for each individual discriminated against on 
or after March 27, 2008;
* * * * *
    (e) * * *
    (1) * * *
    (i) Not less than $275 and not more than $2,200 for each document 
that is the subject of a violation under section 274C(a)(1) through (4) 
of the INA before March 27, 2008, and not less than $375 and not more 
than $3,200 for each document that is the subject of a violation under 
section 274C(a)(1) through (4) of the INA on or after March 27, 2008;
    (ii) Not less than $250 and not more than $2,000 for each document 
that is the subject of a violation under section 274C(a)(5) or (6) of 
the INA before March 27, 2008, and not less than $275 and not more than 
$2,200 for each document that is the subject of a violation under 
section 274C(a)(5) or (6) of the INA on or after March 27, 2008;
    (iii) In the case of a respondent previously subject to one or more 
final orders under section 274C(d)(3) of the INA, not less than $2,200 
and not more than $5,500 for each document that is the subject of a 
violation under section 274C(a)(1) through (4) of the INA before March 
27, 2008, and not less than $3,200 and not more than $6,500 for each 
document that is the subject of a violation under section 274C(a)(1) 
through (4) of the INA on or after March 27, 2008; or
    (iv) In the case of a respondent previously subject to one or more 
final orders under section 274C(d)(3) of the INA, not less than $2,000 
and not more than $5,000 for each document that is the subject of a 
violation under section 274C(a)(5) or (6) of the INA before March 27, 
2008, and not less than $2,200 and not more than $5,500 for each 
document that is the subject of a violation under section 274C(a)(5) or 
(6) of the INA on or after March 27, 2008.
* * * * *

    Dated: January 23, 2008.
Michael B. Mukasey,
Attorney General, Department of Justice.
    Dated: February 11, 2008.
Michael Chertoff,
Secretary, Department of Homeland Security.
 [FR Doc. E8-3320 Filed 2-25-08; 8:45 am]
BILLING CODE 4410-10-P




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