This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

41801 

Vol. 74, No. 159 

Wednesday, August 19, 2009 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 274a 

[ICE 2377–06; DHS Docket No. ICEB–2006– 

0004] 

RIN 1653–AA59 

Safe-Harbor Procedures for Employers 

Who Receive a No-Match Letter: 

Rescission 

AGENCY: U.S. Immigration and Customs 

Enforcement, DHS. 

ACTION: Proposed rule. 

SUMMARY: The Department of Homeland 

Security (DHS) proposes to amend its 

regulations by rescinding the 

amendments promulgated on August 15, 

2007, and October 28, 2008, relating to 

procedures that employers may take to 

acquire a safe harbor from receipt of nomatch letters. Implementation of the 

2007 final rule was preliminarily 

enjoined by the United States District 

Court for the Northern District of 

California on October 10, 2007. After 

further review, DHS has determined to 

focus its enforcement efforts relating to 

the employment of aliens not authorized 

to work in the United States on 

increased compliance through improved 

verification, including participation in 

E-Verify, ICE Mutual Agreement 

Between Government and Employers 

(IMAGE), and other programs. 

DATES: Comments must be submitted 

not later than September 18, 2009. 

ADDRESSES: Comments may be 

submitted, identified by DHS Docket 

No. ICEB 2006–0004, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail/Courier: National Program 

Manager Charles McClain, U.S. 

Immigration and Customs Enforcement, 

Office of Investigations—MS 5112, 500 

12th Street, SW., Washington, DC 

20536–5112.024 To ensure proper 

handling, please reference DHS Docket 

No. ICEB–2006–0004 on your 

correspondence. This mailing address 

may also be used for paper, disk, or CD– 

ROM submissions. 

• Hand Delivery: National Program 

Manager Charles McClain, U.S. 

Immigration and Customs Enforcement, 

500 12th Street, SW., Washington, DC 

20536–20024. 

FOR FURTHER INFORMATION CONTACT: 

National Program Manager Charles 

McClain, U.S. Immigration and Customs 

Enforcement, Office of Investigations— 

MS 5112, 500 12th Street, SW., 

Washington, DC 20536. Telephone: 

202–732–3988 (not a toll-free number). 

SUPPLEMENTARY INFORMATION: 

I. Public Participation 

Interested persons are invited to 

comment on this rulemaking by 

submitting written data, views, or 

arguments on all aspects of the rule. 

Comments that will most assist DHS 

will reference a specific portion of the 

rule and explain the reason for any 

recommended change. Comments 

should include data, information, and 

the authority that supports the 

recommended change. Comments 

previously submitted to this docket do 

not need to be submitted again. 

Instructions for filing comments: All 

submissions received must include the 

agency name and DHS docket number 

ICEB–2006–0004. All comments 

received (including any personal 

information provided) will be posted 

without change to http:// 

www.regulations.gov. See ADDRESSES, 

above, for methods to submit comments. 

Mailed submissions may be paper, disk, 

or CD–ROM. 

Reviewing comments: Public 

comments may be viewed online at 

http://www.regulations.gov or in person 

at U.S Immigration and Customs 

Enforcement, Department of Homeland 

Security, 500 12th Street, SW., Room 

1000, Washington, DC 20024, by 

appointment. To make an appointment 

to review the docket you must call 

telephone number 202–307–0071. 

II. Background 

It is unlawful for a person or other 

entity to hire, or to recruit or refer for 

a fee, an alien for employment in the 

United States knowing the alien is not 

authorized to work in the United States. 

Immigration and Nationality Act of 

1952, as amended (INA), section 

274A(a)(1)(A), 8 U.S.C. 1324a(a)(1)(A). It 

is also unlawful for a person or other 

entity, after hiring an alien for 

employment, to continue to employ the 

alien in the United States knowing the 

alien is (or has become) an unauthorized 

alien with respect to such employment. 

INA section 274A(a)(2), 8 U.S.C. 

1324a(a)(2). 

All persons or entities that hire, or 

recruit or refer persons for a fee, for 

employment must verify the identity 

and employment eligibility of all 

employees hired to work in the United 

States. INA section 274A(a)(1)(B), (b)(1), 

(b)(2), 8 U.S.C. 1324a(a)(1)(B), (b)(1), 

(b)(2). Under the INA, this verification 

is performed by completing an 

Employment Eligibility Verification 

form (Form I–9) for all employees, 

including United States citizens. INA 

section 274A(b)(1), (b)(2), 8 U.S.C. 

1324a (b)(1), (b)(2); 8 CFR 274a.2. An 

employer, or a recruiter or referrer for a 

fee, must retain the completed Form I– 

9 for three years after hiring, recruiting 

or referral, or, where the employment 

extends longer, for the life of the 

individual’s employment and for one 

year following the employee’s 

departure. INA section 274A(b)(3), 8 

U.S.C. 1324a(b)(3). These forms are not 

routinely filed with any Government 

agency; employers are responsible for 

maintaining these records, and they may 

be requested and reviewed by DHS 

Immigration and Customs Enforcement 

(ICE). INA section 274A(b)(1)(E)(3); 8 

CFR 274a.2(b)(2), (c)(2); see 71 FR 34510 

(June 15, 2006) (Electronic Signature 

and Storage of Form I–9, Employment 

Eligibility Verification). 

Employers annually send the Social 

Security Administration (SSA) millions 

of earnings reports (W–2 Forms) in 

which the combination of employee 

name and social security number (SSN) 

does not match SSA records. In some of 

these cases, SSA sends a letter, such as 

an ‘‘Employer Correction Request,’’ that 

informs the employer of the mismatch. 

The letter is commonly referred to as an 

employer ‘‘no-match letter.’’ There can 

be many causes for a no-match, 

including clerical error and name 

changes. One potential cause may be the 

submission of information for an alien 

who is not authorized to work in the 

United States and who may be using a 

false SSN or a SSN assigned to someone 

else. Such a letter may be one indicator 

to an employer that one of its employees 

may be an unauthorized alien. 


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ICE sends a similar letter (currently 

called a ‘‘Notice of Suspect 

Documents’’) after it has inspected an 

employer’s Employment Eligibility 

Verification forms (Forms I–9) during an 

investigation audit and after 

unsuccessfully attempting to confirm, in 

agency records, that an immigration 

status document or employment 

authorization document presented or 

referenced by the employee in 

completing the Form I–9 was assigned 

to that person. (After a Form I–9 is 

completed by an employer and 

employee, it is retained by the employer 

and made available to DHS investigators 

on request, such as during an audit.) 

Over the years, employers have 

inquired of the former Immigration and 

Naturalization Service, and now DHS, 

whether receipt of a no-match letter 

constitutes constructive knowledge on 

the part of the employer that he or she 

may have hired an alien who is not 

authorized to work in the United States. 

On August 15, 2007, DHS issued a rule 

describing the legal obligations of an 

employer following receipt of a nomatch letter from SSA or a letter from 

DHS regarding employment verification 

forms. See 72 FR 45611. The rule also 

established ‘‘safe-harbor’’ procedures for 

employers receiving no-match letters. 

On August 29, 2007, the American 

Federation of Labor and Congress of 

Industrial Organizations, and others, 

filed suit seeking declaratory and 

injunctive relief in the United States 

District Court for the Northern District 

of California. AFL–CIO, et al. v. Chertoff, 

et al., No. 07–4472–CRB, D.E. 1 (N.D. 

Cal. Aug. 29, 2007). The district court 

granted plaintiffs’ initial motion for a 

temporary restraining order against 

implementation of the August 2007 

Final Rule. AFL–CIO v. Chertoff, D.E. 21 

(N.D. Cal. Aug. 31, 2007) (order granting 

motion for temporary restraining order 

and setting schedule for briefing and 

hearing on preliminary injunction). On 

October 10, 2007, the district court 

granted the plaintiffs’ motion for 

preliminary injunction. AFL–CIO v. 

Chertoff, 552 F.Supp.2d 999 (N.D. Cal. 

2007) (order granting motion for 

preliminary injunction). 

The court raised three issues 

regarding DHS’s rulemaking action 

implementing the No-Match final rule: 

Whether DHS had (1) supplied a 

reasoned analysis to justify what the 

court viewed as a change in the 

Department’s position—that a no-match 

letter may be sufficient, by itself, to put 

an employer on notice, and thus impart 

constructive knowledge, that employees 

referenced in the letter may not be 

work-authorized; (2) exceeded its 

authority (and encroached on the 

authority of the Department of Justice 

(DOJ)) by interpreting the antidiscrimination provisions of the 

Immigration Reform and Control Act of 

1986 (IRCA), Public Law 99–603, 100 

Stat. 3359 (1986), INA section 274B, 8 

U.S.C. 1324b; and (3) violated the 

Regulatory Flexibility Act, 5 U.S.C 601 

et seq., by not conducting a regulatory 

flexibility analysis. DHS subsequently 

published a supplemental notice of 

proposed rulemaking (SNPRM) and 

supplemental final rule to clarify certain 

aspects of the 2007 No-Match final rule 

and to respond to the three findings 

underlying the court’s injunction.. See 

e.g. 73 FR 15944 (Mar. 26, 2008), 73 FR 

63843 (Oct. 28, 2008). Neither the 

SNPRM nor final rule, however, 

changed the safe-harbor procedures or 

applicable regulatory text. The 

implementation of the rule remains 

enjoined. 

III. Basis for Policy Change 

On January 20, 2009, President Barack 

Obama was sworn into office. Shortly 

thereafter, on January 21, 2009, Janet 

Napolitano was sworn in as the 

Secretary of Homeland Security. 

Following the transition, the Secretary 

conducted a review of existing programs 

and regulations to determine areas for 

reform or improved efficiency. Pursuant 

to this review, DHS has determined that 

improvements in U.S. Citizenship and 

Immigration Services’ (USCIS) 

electronic employment verification 

system (E-Verify), along with other DHS 

programs, provide better tools for 

employers to reduce incidences of 

unauthorized employment and to better 

detect and deter the use of fraudulent 

identity documents by employees. As 

discussed below, DHS therefore has 

concluded that rescinding the August 

2007 No-Match Rule and 2008 

Supplemental Final Rule will better 

achieve DHS’s regulatory and 

enforcement goals. 

DHS has determined that a more 

appropriate utilization of DHS resources 

would be to focus enforcement/ 

community outreach efforts on 

increased compliance through improved 

verification, including increased 

participation in the USCIS’s E-Verify 

employment eligibility verification 

system, the U.S. Immigration and 

Customs Enforcement’s ICE Mutual 

Agreement Between Government and 

Employers (IMAGE), and other 

programs. This decision is part of a 

Government-wide reexamination of 

regulatory processes. 

Further development of the USCIS EVerify employment eligibility 

verification system warrants refocusing 

DHS’s priorities on the implementation 

of that compliance protocol. DHS 

believes E-Verify is an essential tool for 

employers committed to maintaining a 

legal workforce. E-Verify compares 

employee information from the Form 

I–9 against more than 455,000,000 

records in the SSA database and more 

than 80,000,000 records in DHS 

immigration databases. 

E-Verify has expanded exponentially 

in the past several years to include over 

138,000 employers representing over 

500,000 locations; on average, 1,000 

employers enroll in E-Verify each week. 

Participation has more than doubled 

each fiscal year since 2007. As of 

August 1, 2009, more than six million 

queries have been run through the 

system in FY 2009. Accuracy of the EVerify program also has improved. An 

independent evaluation completed in 

December 2008 found that 

approximately 96.9 percent of all cases 

queried through E-Verify are instantly 

found to be work-authorized. Of the 3.1 

percent of queries that resulted in a 

mismatch of the information in SSA or 

DHS databases, 0.3 percent of queries 

were successfully contested. The 

remaining 2.8 percent either did not 

contest the determination or were 

unsuccessful in contesting, or were 

found unauthorized to work at the 

secondary verification stage. 

In September 2007, E-Verify began to 

automatically flag inconsistent data and 

allow employers to double-check the 

data they entered into E-Verify before 

issuing a tentative non-confirmation, 

thereby reducing data entry errors and 

initial mismatches by approximately 30 

percent. Cross-checking queries against 

USCIS naturalization data reduced 

citizenship mismatches by 

approximately 39 percent. As of May, 

2008, E-Verify also added the Integrated 

Border Inspection System (IBIS) real 

time arrival and departure information 

for non-citizens to its databases. This 

step reduced hundreds of E-Verify 

mismatches that had resulted from data 

entry delays, thus allowing newly 

arriving workers to enter the country 

legally and start working immediately. 

In February 2009, USCIS began 

incorporating Department of State 

passport data into E-Verify in order to 

check citizenship status information in 

the event of a mismatch with SSA, 

reducing the number of mismatches for 

citizens who did not personally 

complete the naturalization process, but 

derived citizenship from their parents, 

eliminating several hundred more 

mismatches. 

Finally, to reduce the premium on 

identity theft to commit immigration 

fraud, the E-Verify program introduced 

a photograph screening capability into 


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1Social Security Administration, Performance 

and Accountability Report, Fiscal Year 2007 at 67– 

8. 

2Social Security Administration, Performance 

and Accountability Report, Fiscal Year 2008 at 175. 

3Office of the Inspector General, Social Security 

Administration, Quick Response Evaluation: 

Effectiveness of Educational Correspondence to 

Employers, Audit Rept. No. A–030–07–17105 (Dec. 

2008) (‘‘[O]ur review showed EDCOR letters were 

not as successful as other SSA processes in 

removing suspended wage items from the ESF’’). 

the verification process in September 

2007, allowing an employer to check the 

photos on Employment Authorization 

Documents or Permanent Resident 

Cards (green card) against images stored 

in USCIS databases. Through use of the 

photo tool, hundreds of cases of 

document and identity fraud have been 

identified, and unauthorized workers 

have been prevented from illegally 

obtaining employment. 

In FY 2010, USCIS plans to improve 

the E-Verify system’s ability to 

automatically verify international 

students and exchange visitors through 

the incorporation of ICE’s Student and 

Exchange Visitors Information System 

(SEVIS) data into E-Verify. By 

incorporating SEVIS nonimmigrant 

student visa data into the automatic 

initial E-Verify check, the number of 

students and exchange visitors who 

receive initial mismatches should be 

reduced. In 2010, ICE will be launching 

a new version of SEVIS, SEVIS II, which 

will include employment eligibility 

information that E-Verify will be able to 

access electronically. Currently, the 

SEVIS database is checked manually by 

immigration status verifiers after an 

initial mismatch is issued. See, 

Adjusting Program Fees and 

Establishing Procedures for Out-of-Cycle 

Review and Recertification of Schools 

Certified by the Student and Exchange 

Visitor Program To Enroll F or M 

Nonimmigrant Students, 73 FR 21260 

(Apr. 21, 2008) (proposed rule); 73 FR 

55683 (Sept. 26, 2008) (final rule) 

(establishing fees and cost base for 

SEVIS II). 

DHS is dedicated to providing this 

service to employers and continuing to 

make improvements to the system to 

address issues such as usability, fraud, 

discrimination, and further improve the 

system’s automatic verification rate. EVerify will continue to be a key element 

of DHS’s ability to deter employment of 

unauthorized aliens and illegal 

immigration. 

Additionally, the ICE Mutual 

Agreement between Government and 

Employers (IMAGE) program assists 

employers to develop a more secure and 

stable workforce and to enhance 

fraudulent document awareness through 

education and training to combat 

unlawful employment and reduce 

vulnerabilities. Employers can reduce 

unauthorized employment and the use 

of fraudulent identity documents by 

voluntarily participating in the IMAGE 

program. As part of IMAGE, ICE and 

USCIS provide education and training 

on proper hiring procedures, fraudulent 

document detection, and the use of the 

E-Verify employment eligibility 

verification program. Since 2006, ICE 

has partnered with industry to provide 

‘‘best practices,’’ training, and 

recommended tools that industry can 

use to comply with worksite laws and 

requirements. In FY 2008, ICE outreach 

coordinators in 26 field offices made 

517 IMAGE presentations to more than 

8,300 businesses. DHS believes that a 

comprehensive strategy to address 

worksite enforcement creates a culture 

of industry compliance. To that end, 

IMAGE outreach efforts have increased 

significantly since the inception of the 

program. 

Opportunities for employment remain 

a primary motivation for aliens seeking 

illegal entry into the United States. ICE’s 

worksite enforcement program targets 

unscrupulous employers who prey upon 

these aliens by subjecting them to poor 

or unsafe working conditions or paying 

them sub-standard wages. ICE’s multifaceted worksite enforcement strategy 

targets two types of employers: 

employers whose business model relies 

upon an unauthorized workforce, and 

employers who place the national 

security of the United States at risk by 

employing unauthorized workers in 

sensitive critical infrastructure 

industries. 

Employers hire undocumented 

workers to obtain a financial advantage 

over their competitors by paying lower 

wages, offering few if any benefits, 

failing to comply with tax laws, and 

avoiding health and safety related 

complaints. ICE focuses on the most 

egregious violators, namely employers 

who engage in human smuggling, 

identity theft, and social security 

number fraud. ICE also focuses on 

employers who use undocumented 

workers at our Nation’s critical 

infrastructure sites, including airports. 

DHS’s worksite enforcement strategy 

includes a restructured process for 

worksite administrative fines to build a 

more vigorous program. ICE has 

established and distributed to all field 

offices guidance about the issuance of 

administrative fines and standardized 

criteria for the imposition of such fines. 

DHS expects that the increased use of 

the administrative fines process will 

result in meaningful penalties for those 

who engage in the employment of 

unauthorized workers. 

ICE has also implemented a 

debarment policy that prevents 

employers from receiving Federal 

contracts when they are in violation of 

worksite laws. After completion of 

administrative proceedings and on the 

basis of a determination that an 

employer has violated the worksite 

laws, an offending employer may be 

excluded from doing business with the 

Federal Government or from receiving 

loans under the Recovery Act. Since this 

relatively new program began, thirtyone companies and forty individuals 

have been debarred. 

ICE also created the Document and 

Benefit Fraud Task Forces (DBFTF) to 

combat the vulnerabilities exploited by 

identity and document fraud 

organizations and to maintain the 

integrity of the United States 

immigration system. The DBFTF 

cooperative effort leverages multiple 

law enforcement tools and authorities to 

identify, disrupt, and dismantle 

criminal organizations involved in 

immigration benefit fraud and the 

manufacturing and distribution of 

fraudulent identity documents, 

including United States passports, birth 

certificates, state-issued identification 

cards, social security cards, and alien 

registration documents. In these 

taskforces, ICE and USCIS work with 

the law enforcement functions and the 

Inspectors General of the Departments 

of Labor and State, the Social Security 

Administration, U.S. Postal Service, and 

various state and local law enforcement 

agencies. 

The aggregate of these changes in 

enforcement priorities must be balanced 

with other efforts of the U.S. 

government. In addition, as noted in the 

2008 Supplemental Final Rule, SSA has 

continued to refine the wage reporting 

process in ways that help to reduce 

potential errors resulting in a no-match 

letter. As noted previously, electronic 

filing of Forms W–2 rose from 53% of 

all employee reports in FY2003 to over 

80% in FY2007—a 51% increase.1 SSA 

has more recently reported a further 

increase in electronic filing of Forms 

W–2 to 86.3%.2 Employers who use 

SSA’s system are able to eliminate most 

no-matches in their reports and thereby 

significantly reduce their likelihood of 

receiving a no-match letter. SSA 

improvements in related areas have led 

the SSA Inspector General to question 

the efficacy of the continuing use of nomatch letters.3

Finally, as noted in the Supplemental 

Final Rule, SSA no-match letters have 

also formed a basis for multiple criminal 

investigations by ICE and prosecutions 

on charges of harboring or knowingly 


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41804 Federal Register / Vol. 74, No. 159 / Wednesday, August 19, 2009 / Proposed Rules 

4 73 FR at 63848 & n.2. Further developments in 

the criminal cases previously noted in this 

rulemaking illustrate the utility of focusing 

attention on employer and employer management 

conduct. United States v. Gonzales, 2008 WL 

160636 (N.D. Miss. No. 4:07–CR–140, Jan. 18, 2008) 

(final order of forfeiture of $310,511.75, as to 

Gonzalez and Tarrasco Steel Company, Inc.); United 

States v. Insolia, No. 1:07–CR–10251 (D. Mass), 

(Insolia plead guilty to harboring and submitting 

false social security numbers; to serve 13 to 18 

months, fined $30,000; MBI plead guilty to 18 

counts of knowingly hiring unauthorized workers 

between early 2004 and late 2006; harboring and 

shielding from 2004–2007; social security and mail 

fraud from 2005–2007; fine approximately 

$1,500,000, including $476,000 in restitution to 

employees; managers also plead guilty); United 

States v. Rice, No. 1:07–CR–109 (N.D.N.Y) (IFCO 

Systems reached corporate settlement of $2,600,000 

in back pay for overtime violations and $18,100,000 

in civil forfeitures. Nine IFCO managers previously 

plead guilty (including Rice) (indictment of seven 

managers for illegal immigration and employmentrelated practices filed). 

hiring unauthorized aliens.4 DHS has 

determined that focusing on the 

management practices of employers 

would be more efficacious than focusing 

on a single element of evidence within 

the totality of the circumstances. 

Accordingly, DHS proposes to rescind 

the 2007 Final Rule and 2008 

Supplemental Final Rule, and reinstate 

the language of 8 CFR 274.1(l) as it 

existed prior to the effective date of the 

2007 Final Rule. 

IV. Statutory and Regulatory Reviews 

A. Administrative Procedure Act 

DHS is publishing this proposed rule 

in the Federal Register as a 

discretionary request for public 

comment. DHS has previously stated 

that the regulation that is being 

rescinded was an interpretive, not 

legislative, rule. 73 FR 15951 (March 26, 

2008) (supplemental proposed rule); 73 

FR 63861 (Oct. 28, 2008) (supplemental 

final rule). DHS believes that rescission 

of the regulation is an interpretive rule 

for the same reasons that the underlying 

regulation being rescinded was an 

interpretive rule. 

B. Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601–612), we have considered 

whether this rule would have a 

significant economic impact on a 

substantial number of small entities. 

This proposed rule would amend DHS 

regulations to rescind the amendments 

promulgated in the 2007 Final Rule and 

the 2008 Supplemental Final Rule 

relating to procedures that employers 

may take to acquire a safe harbor from 

evidentiary use of receipt of no-match 

letters. Implementation of the 2007 

Final Rule was preliminarily enjoined 

by the United States District Court for 

the Northern District of California on 

October 10, 2007. This rule would 

reinstate the language of 8 CFR 274.1(l) 

as it existed prior to the effective date 

of the 2007 Final Rule. 

As explained at 73 FR 63863, DHS 

does not believe the safe-harbor offered 

by the 2007 Final Rule and the 2008 

Supplemental Final Rule imposed a 

mandate that forced employers to incur 

‘‘compliance’’ costs for the purposes of 

the Regulatory Flexibility Act. Only 

small entities that choose to avail 

themselves to the safe harbor would 

incur direct costs as a result of the 2007 

Final Rule and the 2008 Supplemental 

Final Rule. As this rulemaking proposes 

to rescind the offer of a safe harbor, this 

rule does not propose any compliance 

requirements and consequently would 

not impose any direct costs on small 

entities if promulgated as a final rule. 

Therefore, DHS certifies under 5 U.S.C 

605(b) that this notice of proposed 

rulemaking will not have a significant 

economic impact on a substantial 

number of small entities. DHS invites 

comments from small entities regarding 

any direct costs commenters believe this 

rulemaking would impose. 

C. Unfunded Mandates Reform Act of 

1995 

This rule will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in one year, and it would not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995, Public Law No. 104–4, 109 Stat. 

48 (1995), 2 U.S.C. 1501 et seq. 

D. Small Business Regulatory 

Enforcement Fairness Act of 1996 

This proposed rule is not a major rule 

as defined by section 804 of the Small 

Business Regulatory Enforcement Act of 

1996, Public Law 104–121, 804, 110 

Stat. 847, 872 (1996), 5 U.S.C. 804(2). 

This proposed rule has not been found 

to be likely to 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 foreignbased companies in domestic or foreign 

markets. 

E. Executive Order 12866 (Regulatory 

Planning and Review) 

This proposed rule constitutes a 

‘‘significant regulatory action’’ under 

Executive Order 12866, and therefore 

has been reviewed by the Office of 

Management and Budget. Under 

Executive Order 12866, a significant 

regulatory action is subject to an Office 

of Management and Budget (OMB) 

review and to the requirements of the 

Executive Order. The Executive Order 

defines ‘‘significant regulatory action’’ 

as one 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 impact of entitlements, 

grants, user fees, or loan programs or the 

rights or 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 the Executive Order. 

Because this rule rescinds two 

previously published rules that received 

considerable public attention and 

involves multiple agencies of the United 

States, this rule raises novel policy 

issues and, thereby, is subject to OMB 

review. 

F. Executive Order 13132 (Federalism) 

This rule does not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order No. 13132, 64 FR 43,255 (Aug. 4, 

1999), 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 rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order No.12988, 61 

Fed. Reg. 4729 (Feb. 5, 1996). 

H. Paperwork Reduction Act 

This rule calls for no new collection 

of information under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3520). 

List of Subjects in 8 CFR Part 274a 

Administrative practice and 

procedure, Aliens, Employment, 

Penalties, Reporting and recordkeeping 

requirements. 

Accordingly, for the reasons set forth 

in the preamble, DHS proposes to 


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amend part 274A of title 8 of the Code 

of Federal Regulations as follows: 

8 CFR CHAPTER 1—DEPARTMENT OF 

HOMELAND SECURITY 

PART 274a—CONTROL OF 

EMPLOYMENT OF ALIENS 

1. The authority citation for part 274a 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1624a, 8 

CFR part 2, Public Law 101–410, 104 Stat. 

890, as amended by Public Law 104–134, 110 

Stat. 1321. 

2. Section 274a.1 is proposed to be 

amended by revising paragraph (l) to 

read as follows: 

§ 274a.1 Definitions. 

* * * * * 

(l)(1) The term knowing includes not 

only actual knowledge but also 

knowledge which may fairly be inferred 

through notice of certain facts and 

circumstances which would lead a 

person, through the exercise of 

reasonable care, to know about a certain 

condition. Constructive knowledge may 

include, but is not limited to, situations 

where an employer: 

(i) Fails to complete or improperly 

completes the Employment Eligibility 

Verification Form, I–9; 

(ii) Has information available to it that 

would indicate that the alien is not 

authorized to work, such as Labor 

Certification and/or an Application for 

Prospective Employer; or 

(iii) Acts with reckless and wanton 

disregard for the legal consequences of 

permitting another individual to 

introduce an unauthorized alien into its 

work force or to act on its behalf. 

(2) Knowledge that an employee is 

unauthorized may not be inferred from 

an employee’s foreign appearance or 

accent. Nothing in this definition 

should be interpreted as permitting an 

employer to request more or different 

documents than are required under 

section 274(b) of the Act or to refuse to 

honor documents tendered that on their 

face reasonably appear to be genuine 

and to relate to the individual. 

Janet Napolitano, 

Secretary. 

[FR Doc. E9–19826 Filed 8–18–09; 8:45 am] 

BILLING CODE 9111–28–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2009–0715; 

Directorate Identifier 2008–NM–211– 

AD] 

RIN 2120–AA64 

Airworthiness Directives; Empresa 

Brasileira de Aeronautica S.A. 

(EMBRAER) Model EMB–120, –120ER, 

–120FC, –120QC, and –120RT 

Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: We propose to adopt a new 

airworthiness directive (AD) for the 

products listed above. This proposed 

AD results from mandatory continuing 

airworthiness information (MCAI) 

originated by an aviation authority of 

another country to identify and correct 

an unsafe condition on an aviation 

product. The MCAI describes the unsafe 

condition as: It has been found the 

occurrence of corrosion on the Auxiliary 

Power Unit (APU) mounting rods that 

could cause the APU rod to break, 

affecting the APU support structure 

integrity. 

APU support structure failure could 

result in undetectable fire in the tail 

cone and possible loss of control of the 

airplane. The proposed AD would 

require actions that are intended to 

address the unsafe condition described 

in the MCAI. 

DATES: We must receive comments on 

this proposed AD by September 18, 

2009. 

ADDRESSES: You may send comments by 

any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: (202) 493–2251. 

• Mail: U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590. 

• Hand Delivery: U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–40, 1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. 

For service information identified in 

this proposed AD, contact Empresa 

Brasileira de Aeronautica S.A. 

(EMBRAER), Technical Publications 

Section (PC 060), Av. Brigadeiro Faria 

Lima, 2170—Putim–12227–901 Sa ̃o Jose 

dos Campos–SP—BRASIL; telephone: 

+55 12 3927–5852 or +55 12 3309–0732; 

fax: +55 12 3927–7546; e-mail: 

distrib@embraer.com.br; Internet: http:// 

www.flyembraer.com. You may review 

copies of the referenced service 

information at the FAA, Transport 

Airplane Directorate, 1601 Lind 

Avenue, SW., Renton, Washington. For 

information on the availability of this 

material at the FAA, call 425–227–1221 

or 425–227–1152. 

Examining the AD Docket 

You may examine the AD docket on 

the Internet at http:// 

www.regulations.gov; or in person at the 

Docket Operations office between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. The AD docket 

contains this proposed AD, the 

regulatory evaluation, any comments 

received, and other information. The 

street address for the Docket Operations 

office (telephone (800) 647–5527) is in 

the ADDRESSES section. Comments will 

be available in the AD docket shortly 

after receipt. 

FOR FURTHER INFORMATION CONTACT: 

Sanjay Ralhan, Aerospace Engineer, 

International Branch, ANM–116, 

Transport Airplane Directorate, FAA, 

1601 Lind Avenue, SW., Renton, 

Washington 98057–3356; telephone 

(425) 227–1405; fax (425) 227–1149. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

We invite you to send any written 

relevant data, views, or arguments about 

this proposed AD. Send your comments 

to an address listed under the 

ADDRESSES section. Include ‘‘Docket No. 

FAA–2009–0715; Directorate Identifier 

2008–NM–211–AD’’ at the beginning of 

your comments. We specifically invite 

comments on the overall regulatory, 

economic, environmental, and energy 

aspects of this proposed AD. We will 

consider all comments received by the 

closing date and may amend this 

proposed AD based on those comments. 

We will post all comments we 

receive, without change, to http:// 

www.regulations.gov, including any 

personal information you provide. We 

will also post a report summarizing each 

substantive verbal contact we receive 

about this proposed AD. 

Discussion 

The Agencia Nacional De Aviacao 

Civil—Brazil (ANAC), which is the 

airworthiness authority for Brazil, has 

issued Brazilian Airworthiness Directive 

2008–08–01, dated October 21, 2008 


CPrice-Sewell on DSK1DXX6B1PROD with PROPOSALS