70586 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 

■ b. In paragraph (g)(16), in paragraph 

(B) of the definition of Qualified debt, 

remove ‘‘85%’’, ‘‘120.131 and 

120.870(b)’’, and ‘‘120.131(b)’’ and add 

in their places ‘‘75%’’, ‘‘§§ 120.131 and 

120.870(b)’’, and ‘‘§ 120.131(b)’’, 

respectively. 

The revisions read as follows: 

§ 120.882 Eligible Project costs for 504 

loans. 

* * * * * 

(g) * * * 

(3) A loan that is subject to a 

guarantee by a Federal agency or 

department may be refinanced under 

the following conditions and 

requirements: 

(i) An existing 504 loan may be 

refinanced if both the Third Party Loan 

and the 504 Loan are being refinanced 

or the Third Party Loan has been paid 

in full. If the 504 Loan being refinanced 

received approval through another CDC, 

the CDC working on the current 

refinancing must provide advance 

notice to the other CDC in writing (by 

email or letter). 

(ii) An existing 7(a) loan may be 

refinanced if the CDC notifies the 7(a) 

lender in advance in writing (by email 

or letter). 

(iii) The refinancing will provide a 

substantial benefit to the borrower. For 

purposes of this paragraph (g)(3)(iii), 

‘‘substantial benefit’’ means that the 

portion of the new installment amount 

attributable to the debt being refinanced 

must be at least 10 percent less than the 

existing installment amount(s). 

Prepayment penalties (including 

subsidy recoupment fees), financing 

fees, and other financing costs must be 

added to the amount being refinanced in 

calculating the percentage reduction in 

the new installment payment, but the 

portion of the new installment amount 

attributable to Eligible Business 

Expenses (as described in paragraph 

(g)(6)(ii) of this section) is not included 

in this calculation. Exceptions to the 10 

percent reduction requirement may be 

approved by the Director, Office of 

Financial Assistance (D/FA) or designee 

for good cause. PCLP CDCs may not use 

their delegated authority to approve a 

loan requiring the exception in this 

paragraph (g)(3)(iii). 

* * * * * 

(15) Notwithstanding § 120.860, a 

debt may be refinanced under this 

paragraph (g) if it does not meet the job 

creation or other economic development 

objectives set forth in § 120.861 or 

§ 120.862. In such case, the 504 loan 

may not exceed the product obtained by 

multiplying the number of employees of 

the Borrower by $90,000. The number of 

employees of the Borrower is equal to 

the sum of: 

(i) The number of full-time employees 

of the Borrower on the date of the 

application; and 

(ii) The product obtained by 

multiplying: 

(A) The number of part-time 

employees of the Borrower on the date 

of the application; by 

(B) The quotient obtained by dividing 

the average number of hours each parttime employee of the Borrower works 

each week by 40. 

Example 1 to paragraph (g)(15): 30 

full-time employees and 35 part-time 

employees working 20 hours per week 

is calculated as follows: 30 + (35 × (20/ 

40)) = 47.5. The maximum amount of 

the 504 loan would be 47.5 multiplied 

by $90,000, or $4,275,000. 

* * * * * 

■ 3. Amend § 120.883 by revising 

paragraph (e) to read as follows: 

§ 120.883 Eligible administrative costs for 

504 loans. 

* * * * * 

(e) CDC Closing Fee (see 

§ 120.971(a)(2)) up to a maximum of 

$10,000; and 

* * * * * 

Isabella Casillas Guzman, 

Administrator. 

[FR Doc. 2023–22169 Filed 10–11–23; 8:45 am] 

BILLING CODE 8026–09–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 68 

[EOIR Docket No. 022–0010; AG Order No. 

5812–2023] 

RIN 1125–AB28 

Office of the Chief Administrative 

Hearing Officer, Review Procedures 

AGENCY: Executive Office for 

Immigration Review, Department of 

Justice. 

ACTION: Interim final rule; request for 

comment. 

SUMMARY: The Department of Justice 

(‘‘Department’’) is revising its 

regulations to provide that the Attorney 

General may, in his discretion, review 

decisions and orders of Administrative 

Law Judges (‘‘ALJs’’) in the Office of the 

Chief Administrative Hearing Officer 

(‘‘OCAHO’’) in cases arising under 

section 274B of the Immigration and 

Nationality Act (‘‘INA’’ or ‘‘the Act’’). 

This revision will ensure that the 

adjudicatory process for section 274B 

cases is consistent with the Supreme 

Court’s decision in the 2021 case United 

States v. Arthrex, Inc., and will align 

that process with similar processes for 

discretionary review of decisions by 

ALJs in OCAHO and throughout the 

Executive Branch. It will not limit or 

alter parties’ right to seek judicial 

review of adverse decisions. 

DATES: 

Effective date: This rule is effective 

October 12, 2023. 

Comments: Electronic comments must 

be submitted and written comments 

must be postmarked or otherwise 

indicate a shipping date on or before 

December 11, 2023. 

ADDRESSES: If you wish to provide 

comment regarding this rulemaking, you 

must submit comments, identified by 

the agency name and reference RIN 

1125–AB28 or EOIR Docket No. 022– 

0010, by one of the two methods below. 

• Federal eRulemaking Portal: 

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

website’s instructions for submitting 

comments. The electronic Federal 

Docket Management System (FDMS) at 

https://www.regulations.gov will accept 

electronic comments until 11:59 p.m. 

Eastern Time on December 11, 2023. 

• Mail: Paper comments that 

duplicate an electronic submission are 

unnecessary. If you wish to submit a 

paper comment in lieu of electronic 

submission, please direct the mail/ 

shipment to: Raechel Horowitz, Chief, 

Immigration Law Division, Office of 

Policy, Executive Office for Immigration 

Review, 5107 Leesburg Pike, Suite 1800, 

Falls Church, VA 22041. To ensure 

proper handling, please reference the 

agency name and RIN 1125–AB28 or 

EOIR Docket No. 022–0010 on your 

correspondence. Mailed items must be 

postmarked or otherwise indicate a 

shipping date on or before the 

submission deadline. 

FOR FURTHER INFORMATION CONTACT: 

Raechel Horowitz, Chief, Immigration 

Law Division, Office of Policy, 

Executive Office for Immigration 

Review, 5107 Leesburg Pike, Suite 1800, 

Falls Church, VA 22041, telephone 

(703) 305–0289 (not a toll-free call). 

SUPPLEMENTARY INFORMATION: 

I. Public Participation 

Interested persons are invited to 

participate in this rulemaking by 

submitting written data, views, or 

arguments on all aspects of this interim 

final rule (‘‘IFR’’) via one of the methods 

and by the deadline stated above. The 

Department also invites comments that 

relate to the economic, environmental, 

or federalism effects that might result 

from this IFR. Comments that will 

provide the most assistance to the 


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1Section 274A, 8 U.S.C. 1324a, relates to the 

unlawful employment of noncitizens, including 

making unlawful the employment of unauthorized 

noncitizens. Section 274B, 8 U.S.C. 1324b, sets 

forth requirements and procedures for investigating 

and conducting hearings related to unfair 

immigration-related employment practices, 

specifically discrimination based on national origin 

or citizenship status. Section 274C, 8 U.S.C. 1324c, 

establishes the penalties for document fraud when 

seeking immigration-related benefits or satisfying 

certain requirements of the INA. 

2This appellate review authority has been 

delegated by regulation to the CAHO. See 28 CFR 

0.118, 68.2, 68.54. 

Department in developing these 

procedures will reference a specific 

portion of the IFR; explain the reason 

for any recommended change; and 

include data, information, or authority 

that supports such recommended 

change. 

Please note that all comments 

received are considered part of the 

public record and made available for 

public inspection at https://

www.regulations.gov. Such information 

includes personally identifying 

information (such as your name, 

address, etc.) voluntarily submitted by 

the commenter. 

If you want to submit personally 

identifying information (such as your 

name, address, etc.) as part of your 

comment, but do not want it to be 

posted online, you must include the 

phrase ‘‘PERSONALLY IDENTIFYING 

INFORMATION’’ in the first paragraph 

of your comment and identify what 

information you want redacted. 

If you want to submit confidential 

business information as part of your 

comment, but do not want it to be 

posted online, you must include the 

phrase ‘‘CONFIDENTIAL BUSINESS 

INFORMATION’’ in the first paragraph 

of your comment. You also must 

prominently identify confidential 

business information to be redacted 

within the comment. If a comment has 

so much confidential business 

information that it cannot be effectively 

redacted, all or part of that comment 

may not be posted on https://

www.regulations.gov. 

Personally identifying information 

located as set forth above will be placed 

in the agency’s public docket file, but 

not posted online. Confidential business 

information identified and located as set 

forth above will not be placed in the 

public docket file. The Department may 

withhold from public viewing 

information provided in comments that 

it determines may impact the privacy of 

an individual or is offensive. For 

additional information, please read the 

Privacy Act notice that is available via 

the link in the footer of https://

www.regulations.gov. To inspect the 

agency’s public docket file in person, 

you must make an appointment with the 

agency. Please see the FOR FURTHER

INFORMATION CONTACT section of this 

document for agency contact 

information. 

II. Background 

A. Office of the Chief Administrative 

Hearing Officer (‘‘OCAHO’’): 

Organization and Authority 

OCAHO is a component of the 

Department’s Executive Office for 

Immigration Review (‘‘EOIR’’). See 8 

CFR 1003.0(a). Administrative Law 

Judges (‘‘ALJs’’) in OCAHO have 

jurisdiction to decide cases arising 

under sections 274A, 274B, and 274C of 

the Immigration and Nationality Act 

(‘‘INA’’), 8 U.S.C. 1324a, 1324b, and 

1324c, and the procedures for such 

cases are set forth at 28 CFR part 68. 

Under these statutes and regulations, 

OCAHO ALJs conduct hearings, 

administer oaths, compel the 

production of documents and 

appearance of witnesses, issue 

subpoenas, and issue decisions and 

orders. 28 CFR 68.28(a); see also INA 

274A(e), 274B(f), (g), and 274C(d), 8 

U.S.C. 1324a(e), 1324b(f), (g), 1324c(d); 

accord 5 U.S.C. 556(c) (outlining general 

authorities of administrative agency 

ALJs). OCAHO is headed by a Chief 

Administrative Hearing Officer 

(‘‘CAHO’’), who exercises 

administrative supervision over the 

ALJs and other staff assigned to OCAHO 

and reviews certain decisions and 

orders issued by the ALJs. See generally 

28 CFR 68.2 (delineating the authorities 

of the CAHO). 

The INA provides instruction 

regarding the finality of and available 

appellate procedures for OCAHO ALJ 

orders under sections 274A, 274B, and 

274C of the Act, 8 U.S.C. 1324a, 1324b, 

and 1324c.1 Specifically, in cases 

arising under sections 274A and 274C of 

the Act, 8 U.S.C. 1324a and 1324c, the 

Act provides that final orders issued by 

OCAHO ALJs are subject to 

administrative appellate review by both 

‘‘an official delegated by regulation to 

exercise review authority’’ and the 

Attorney General. See INA 274A(e)(7), 

274C(d)(4), 8 U.S.C. 1324a(e)(7), 

1324c(d)(4).2 OCAHO’s regulations in 

turn provide specific procedures for this 

review. See 28 CFR 68.54 through 68.55. 

However, in cases arising under section 

274B of the Act, 8 U.S.C. 1324b, the 

statute provides that the ALJ’s order 

‘‘shall be final’’ unless appealed to the 

appropriate United States court of 

appeals. INA 274B(g)(1), (i), 8 U.S.C. 

1324b(g)(1), (i). OCAHO’s current 

regulations provide that the ALJ’s final 

order in a case under section 274B of 

the Act, 8 U.S.C. 1324b, is the final 

agency order and is not subject to 

further review within the Department. 

See 28 CFR 68.52(g). Consistent with 

that regulation, OCAHO has previously 

concluded that ALJ orders under section 

274B of the Act, 8 U.S.C. 1324b, are not 

subject to further administrative review, 

including by the Attorney General. See 

A.S. v. Amazon Web Servs. Inc., 14 

OCAHO no. 1381h, 2 (2021); WongOpasi v. Sundquist, 8 OCAHO no. 1051, 

799, 799 (2000). 

B. Concerns With Current Regulations 

Interpreting Section 274B of the Act, 8 

U.S.C. 1324b 

The Supreme Court’s decision in 

United States v. Arthrex, Inc., 141 S. Ct. 

1970 (2021), has spurred a reevaluation 

of OCAHO’s current regulatory 

framework that permits OCAHO ALJs to 

issue final orders not subject to further 

agency review in cases arising out of 

alleged violations of section 274B of the 

Act, 8 U.S.C. 1324b. 

The Appointments Clause of the 

Constitution sets out the manner in 

which ‘‘Officers of the United States’’ 

who exercise significant governmental 

authority must be appointed. U.S. 

Const. art. II, sec. 2, cl. 2; Buckley v. 

Valeo, 424 U.S. 1, 126 & n.162, 141 

(1976). Principal officers must be 

appointed by the President, by and with 

the advice and consent of the Senate, 

but inferior officers may be appointed 

by the President alone, the head of an 

executive department, or a court of law. 

U.S. Const. art. II, sec. 2, cl. 2; see also 

Buckley, 424 U.S. at 132. OCAHO ALJs 

are appointed by the Attorney General, 

see 28 U.S.C. 509, 510; 5 U.S.C. 3105, 

consistent with one of the methods 

permitted by the Constitution for the 

appointment of inferior officers, see 

Buckley, 424 U.S. at 132. 

In Arthrex, the Court considered an 

adjudicatory framework where a statute 

expressly precluded a principal officer 

from directly reviewing the decisions of 

certain inferior officers—administrative 

patent judges (‘‘APJs’’)—and those APJs 

further had restrictions on their removal 

from office. See Arthrex, 141 S. Ct. at 

1977–78, 1981–82, 1985. The Court 

explained that ‘‘[a]n inferior officer 

must be ‘directed and supervised at 

some level by others who were 

appointed by Presidential nomination 

with the advice and consent of the 

Senate.’ ’’ Id. at 1980 (quoting Edmond 

v. United States, 520 U.S. 651, 663 

(1997)). The Court further explained 

that such unreviewable adjudicatory 

authority would conflict with the role of 

inferior officers, which inherently 

involves being subject to the direction 


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and supervision of others, either 

through higher-level review of the 

adjudicators’ decisions or the ability to 

remove adjudicators from their 

positions at will. See generally id. at 

1981–82. To remedy the constitutional 

concerns, the Court held that the 

statutory provision limiting or 

foreclosing review of APJ final decisions 

was unenforceable insofar as it 

prevented the Director of the United 

States Patent and Trademark Office 

(‘‘USPTO’’)—who is appointed by the 

President with the advice and consent 

of the Senate and therefore is ‘‘a 

politically accountable officer’’ as 

described in Arthrex, id. at 1982—from 

reviewing APJ decisions. See id. at 

1986–87. 

The Department has examined its 

current regulation governing cases 

arising under section 274B of the Act, 8 

U.S.C. 1324b, in light of the principles 

outlined in Arthrex. The statutory 

framework under section 274B of the 

Act, 8 U.S.C. 1324b, does not expressly 

state that a principal officer may review 

an OCAHO ALJ’s decision in cases 

arising under that provision and 

describes an OCAHO ALJ’s order as 

final unless appealed to a federal circuit 

court, INA 274B(g)(1), 8 U.S.C. 

1324(g)(1). Unlike the statutory 

framework in Arthrex, however, there is 

no statutory provision in section 274B 

of the Act, 8 U.S.C. 1324b, expressly 

limiting further review by a single 

principal officer. Compare 35 U.S.C. 

6(c) (providing that decisions ‘‘shall be 

heard by at least 3 members of the 

Patent Trial and Appeal Board’’ and that 

‘‘[o]nly the Patent Trial and Appeal 

Board may grant rehearings’’). 

The Department’s current regulation 

provides that, in cases arising under 

section 274B of the Act, 8 U.S.C. 1324b, 

an ALJ’s decision ‘‘becomes the final 

agency order on the date the order is 

issued’’ and does not expressly provide 

for administrative review. 28 CFR 

68.52(g). This regulation could be read 

to prevent further review by the 

Attorney General, which would make it 

comparable to the statutory scheme in 

Arthrex that prevented further review 

by the USPTO Director. See id.; cf. 

Amazon Web Servs., 14 OCAHO no. 

1381h at 2 n.4. 

C. Interpreting INA 274B, 8 U.S.C. 

1324b, in Light of Arthrex 

Following the Supreme Court’s 

decision in Arthrex, the Department has 

considered whether the current 

regulation setting out procedures for 

OCAHO ALJ decisions under section 

274B of the Act, 8 U.S.C. 1324b, is the 

best implementation of the statute. The 

Department concludes that another 

reading of section 274B of the Act, 8 

U.S.C. 1324b—one that expressly 

accounts for review of ALJ decisions by 

the Attorney General—is the better 

understanding of the law. This reading 

is also more consistent with the 

Administrative Procedure Act’s (APA) 

general framework, which 

acknowledges a default rule of agency 

review of ALJ decisions. Specifically, 

the APA provides that after an ALJ 

makes an initial decision, ‘‘that decision 

then becomes the final decision of the 

agency without further proceedings 

unless there is an appeal to, or review 

on motion of, the agency within time 

provided by rule.’’ 5 U.S.C. 557(b) 

(emphasis added). This default rule of 

review supports the conclusion that the 

phrase ‘‘shall be final’’ in section 

274B(g)(1) of the Act, 8 U.S.C. 

1324b(g)(1), is best understood to mean 

that the ALJ’s initial decision under 

section 274B of the Act, 8 U.S.C. 1324b, 

is the final agency action for purposes 

of seeking judicial review unless the 

decision is further reviewed by the 

Attorney General. This conclusion is 

further bolstered when read in 

conjunction with general principles of 

administrative law, the well-settled 

meaning of the word ‘‘final’’ in this 

context, the Executive Branch’s practice 

in related areas, and the constitutional 

requirements of the Appointments 

Clause, each discussed in further detail 

below. 

Specifically, this understanding of 

section 274B of the Act, 8 U.S.C. 1324b, 

is most consonant with general 

administrative law principles. As the 

Office of Legal Counsel has previously 

explained, ‘‘[u]nder the APA, ‘final 

agency action’ is generally understood 

to mean that action which is necessary 

and sufficient for judicial review.’’ 

Secretary of Education Review of 

Administrative Law Judge Decisions, 15 

Op. O.L.C., 8, 10 (1991) (‘‘Secretary of 

Education’’). An ‘‘extensive body of 

precedent’’ establishes that an ‘‘agency’s 

decision need not be its last word on a 

subject to be considered ‘final agency 

action,’ ’’ and that an ‘‘agency action can 

be ‘final’ for purposes of the APA, and 

thus for purposes of judicial review, 

even though it is subject to 

reconsideration on appeal to a higher 

authority within the agency.’’ Id. at 10– 

11. And where ‘‘Congress employs a 

term of art with a well-established 

meaning, it is generally presumed in the 

absence of evidence to the contrary to 

have intended that meaning to apply.’’ 

Id. at 11. Section 274B of the Act, 8 

U.S.C. 1324b, is thus ‘‘most naturally 

read’’ to indicate that an ALJ’s decision 

shall be considered final agency action 

for purposes of sufficiency for judicial 

review under 5 U.S.C. 704, not as 

‘‘preclud[ing] further review of an ALJ’s 

decision’’ by the Attorney General. Id. 

Indeed, throughout the Executive 

Branch, including in other Department 

components that utilize ALJs, ALJs 

render ‘‘initial decisions,’’ sometimes 

called ‘‘recommended decisions,’’ in 

certain cases that the agency can review 

further or, if there is no appeal or 

referral, become final agency decisions. 

See, e.g., 21 CFR 1316.64 through 

1316.67 (providing a process through 

which the Administrator of the Drug 

Enforcement Administration reviews 

recommended decisions of ALJs before 

they are published as final decisions); 

27 CFR 555.79 (providing a process for 

the Director of the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives to 

review initial decisions of ALJs in 

license and permit proceedings, after 

which the initial decision becomes final 

unless modified or reversed by the 

Director, but also noting that initial 

decisions may be appealed directly to 

the federal court of appeals); see also 28 

CFR 68.52(g) (providing that ALJ orders 

in cases under sections 274A and 274C 

of the Act, 8 U.S.C. 1324a and 1324c, 

become final agency orders 60 days after 

issuance unless the orders are modified 

or vacated by the CAHO or referred to 

the Attorney General for review). Thus, 

a structure in which ALJ decisions are 

not subject to further review within the 

Executive Branch is an anomaly rather 

than the standard. 

In addition to the above conclusion 

that this reading of the term ‘‘final 

agency action’’ is most consonant with 

general administrative law practices, the 

analysis in Secretary of Education 

provides further support for this 

interpretation as a mechanism for 

avoiding potential constitutional issues 

that would arise with a contrary reading 

of section 274B(g)(1) of the Act, 8 U.S.C. 

1324b(g)(1). That opinion explained that 

a statutory provision providing that an 

ALJ’s decision ‘‘shall be considered to 

be a final agency action’’ was best read 

to mean that the decision could be a 

final agency action for purposes of 

seeking judicial review, not that the 

Secretary of Education was foreclosed 

from exercising the agency head’s 

customary role of reviewing the 

decisions of subordinates. 15 Op. O.L.C. 

at 12–13. The opinion noted that ‘‘[i]f 

the Act were construed to forbid the 

Secretary’s review of an ALJ decision, 

there would be presented serious 

constitutional questions relating to the 

ALJ’s appointments and the lack of 

presidential control over their 

activities.’’ Id. at 13. 


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3Additional authority for this IFR is found in 28 

U.S.C. 509, which provides that ‘‘[a]ll functions of 

other officers of the Department of Justice and all 

functions of agencies and employees of the 

Department of Justice are vested in the Attorney 

General,’’ except for functions ‘‘vested by [the APA] 

in administrative law judges’’ and other exceptions 

not relevant here. The exclusion of ALJ functions 

in 28 U.S.C. 509 does not affect the Attorney 

General’s authority to promulgate an appeal or 

referral procedure for cases heard by ALJs and 

review such cases pursuant to that regulation 

because when reviewing an ALJ decision, the 

Attorney General would be exercising a function 

generally vested in agency heads under the APA, 

5 U.S.C. 557(b), and not the functions of ALJs 

themselves. 

Relatedly, ensuring that the Attorney 

General has the opportunity to review 

ALJ decisions is informed by the 

remedy that the Supreme Court 

prescribed in Arthrex. There, the Court 

held that pursuant to severability 

principles, ‘‘the structure of the PTO 

and the governing constitutional 

principles chart a clear course: 

Decisions by APJs must be subject to 

review by the Director,’’ a politically 

accountable officer. Arthrex, 141 S. Ct. 

at 1986. Here too, allowing the Attorney 

General to ‘‘review[ ] the decisions of 

the [ALJs] on his own,’’ id. at 1987, 

would be most consistent with the 

Appointments Clause. 

Given the general principles of 

administrative law, the well-settled 

meaning of the word ‘‘final’’ in this 

context, the fact that head-of-agency 

review of ALJ decisions is the APA 

norm, and possible constitutional 

concerns with granting ALJs final 

decision-making authority not subject to 

further agency review, the Department 

declines to read the statute as 

precluding Attorney General review. 

D. Purpose of the IFR 

Consequently, the Department 

concludes that section 274B(g)(1) of the 

Act, 8 U.S.C. 1324b(g)(1), should not be 

read to preclude all further 

administrative review of an ALJ’s 

decision. The typical understanding of 

the word ‘‘final’’ in Administrative 

Procedure Act cases, the fact that headof-agency review of ALJ decisions is the 

APA norm, and possible constitutional 

avoidance concerns make this IFR’s new 

provisions implementing procedures 

related to section 274B of the Act, 8 

U.S.C. 1324b, including section 

274B(g)(1) of the Act, 8 U.S.C. 

1324b(g)(1), most appropriate to ensure 

a constitutionally sound review 

procedure for claims arising under this 

section.3 Further, OCAHO cases arising 

under section 274A and 274C of the Act, 

8 U.S.C. 1324a and 1324c, are already 

subject to possible review by the 

Attorney General. See 28 CFR 68.55. 

Accordingly, to effectuate the 

Department’s new interpretation and 

avoid potential constitutional issues 

raised by the Arthrex decision, the 

Department is amending relevant parts 

of 28 CFR part 68 to provide the 

opportunity for Attorney General review 

of ALJ decisions in cases arising under 

section 274B of the Act, 8 U.S.C. 1324b, 

consistent with longstanding existing 

practices used in cases under sections 

274A and 274C of the Act, 8 U.S.C. 

1324a and 1324c. 

III. Summary of Changes 

The Department is amending 

OCAHO’s rules of practice and 

procedure to implement a review 

procedure for ALJ decisions in cases 

arising under section 274B of the Act, 8 

U.S.C. 1324b, that aligns with the 

agency review procedures set forth in 

the APA, is consistent with general 

administrative law principles, and is 

constitutionally sound. These changes 

will provide the Attorney General with 

an opportunity to review all OCAHO 

ALJ final orders consistent with the 

Attorney General’s position as the head 

of the Department with responsibility 

for oversight of inferior officers at the 

Department. The decision whether to 

review an OCAHO ALJ decision would 

be within the sole discretion of the 

Attorney General, and no party will 

have the right to seek or request such 

review. 

First, consistent with the overall 

intent of this IFR to ensure the 

opportunity for Attorney General review 

of ALJ decisions in cases under section 

274B of the Act, 8 U.S.C. 1324b, this IFR 

amends the definitions of ‘‘entry’’ and 

‘‘final agency order’’ in 28 CFR 68.2. 

With respect to the definition of 

‘‘entry,’’ this IFR removes the separate 

definition of ‘‘entry’’ for cases arising 

under section 274B(i)(1) of the Act, 8 

U.S.C. 1324b(i)(1). See 28 CFR 68.2 

(2023) (defining the word ‘‘entry’’ to 

mean ‘‘the date the Administrative Law 

Judge, Chief Administrative Hearing 

Officer, or the Attorney General signs 

the order’’ and, as used in section 

274B(i)(1) of the INA, to mean ‘‘the date 

the Administrative Law Judge signs the 

order[.]’’). Thus, pursuant to this IFR, 

the regulation provides a singular 

definition for ‘‘entry’’ that applies to 

cases arising under sections 274A, 274B, 

and 274C of the Act, 8 U.S.C. 1324a, 

1324b, and 1324c. Regarding the 

definition of ‘‘final agency order,’’ this 

IFR adds a reference to section 274B of 

the Act, 8 U.S.C. 1324b, in addition to 

the existing references to sections 274A 

and 274C of the Act, 8 U.S.C. 1324a and 

1324c, to the first sentence of the 

definition and removes a separate 

definition of the term ‘‘final agency 

order’’ exclusive to cases arising under 

section 274B of the Act, 8 U.S.C. 1324b. 

See 28 CFR 68.2 (2023) (stating that 

‘‘[i]n cases arising under section 274B of 

the INA, an Administrative Law Judge’s 

final order is also the final agency 

order’’). Further, this IFR makes 

conforming amendments in paragraph 

(g) of 28 CFR 68.52 regarding what 

constitutes the final agency order in 

cases under section 274B of the Act, 8 

U.S.C. 1324b. Specifically, the IFR adds 

that in cases arising under 274B of the 

Act, 8 U.S.C. 1324b, the Administrative 

Law Judge’s order becomes the final 

agency order sixty (60) days after the 

date of entry of the Administrative Law 

Judge’s order, unless the order is 

referred to the Attorney General 

pursuant to 28 CFR 68.55. 

Second, the IFR amends 28 CFR 68.55 

to specify the procedures for Attorney 

General review of ALJ decisions and 

orders in cases arising under section 

274B of the Act, 8 U.S.C. 1324b, 

including by providing a time frame for 

referral of such cases. 

Third, the IFR amends 28 CFR 68.57 

regarding the procedures for seeking 

judicial review of a final agency order 

in cases arising under section 274B of 

the Act, 8 U.S.C. 1324b, to include final 

agency orders issued under 28 CFR 

68.55(d). See 28 CFR 68.55(d) (2023) 

(describing the final agency order in 

cases referred to the Attorney General 

for review). The IFR also makes nonsubstantive edits to 28 CFR 68.56 to 

include cross-references to relevant 

regulatory provisions and parallel the 

structure of revised 28 CFR 68.57. 

Finally, the IFR also revises the 

authority citation for 28 CFR part 68 to 

include citations to 28 U.S.C. 509 

(‘‘Functions of the Attorney General’’), 

28 U.S.C. 510 (‘‘Delegation of 

Authority’’), and 5 U.S.C. 557(b) to 

ensure clarity regarding the basis for the 

Attorney General’s authority to review 

OCAHO cases. 

IV. Regulatory Requirements 

A. Administrative Procedure Act 

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 these regulatory changes 

because this IFR is a rule of ‘‘agency 

organization, procedure, or practice.’’ 5 

U.S.C. 553(b)(A). This IFR, as with prior 

OCAHO procedural rulemakings, 

pertains solely to agency procedures 

and practices regarding the processing 

of cases before OCAHO and does not 

diminish or reduce any substantive 


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70590 Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 

rights possessed by parties utilizing 

those practices and procedures. See, 

e.g., Rules of Practice and Procedure for 

Administrative Hearings Before 

Administrative Law Judges in Cases 

Involving Allegations of Unlawful 

Employment of Aliens and Unfair 

Immigration-Related Employment 

Practices, 56 FR 50049, 50052 (Oct. 3, 

1991); 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, 64 FR 

7076, 7072 (Feb. 12, 1999). Although the 

Department has determined that this 

IFR is not subject to the general 

requirements of notice and comment 

and a 30-day delay in the effective date, 

it is nevertheless promulgating this rule 

as an IFR, providing the public with the 

opportunity for post-promulgation 

comment. 

B. Regulatory Flexibility Act 

The Department has reviewed this 

regulation in accordance with the 

Regulatory Flexibility Act (5 U.S.C. 

605(b)) and has determined that this IFR 

will not have a significant economic 

impact on a substantial number of small 

entities. Further, a regulatory flexibility 

analysis is not required when the 

agency is not required to publish a 

general notice of proposed rulemaking, 

as is the case here. 5 U.S.C. 604(a) 

(‘‘When an agency promulgates a final 

rule under section 553 of this title, after 

being required by that section or any 

other law to publish a general notice of 

proposed rulemaking . . . the agency 

shall prepare a final regulatory 

flexibility analysis.’’); see also 5 U.S.C. 

601(2) (defining a rule for purposes of 

the Regulatory Flexibility Act ‘‘as any 

rule for which the agency publishes a 

general notice of proposed rulemaking 

pursuant to section 553(b)’’). 

C. Unfunded Mandates Reform Act of 

1995 

This IFR will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. See 2 U.S.C. 1532(a). 

D. Congressional Review Act 

This IFR is not a major rule as defined 

by section 804 of the Congressional 

Review Act. See 5 U.S.C. 804(2). 

Moreover, this action is a rule of agency 

organization that does not substantially 

affect the rights or obligations of nonagency parties. Accordingly, it is not a 

‘‘rule’’ as that term is used in 5 U.S.C. 

804(3). Therefore, the reports to 

Congress and the Government 

Accountability Office specified by 5 

U.S.C. 801 are not required. 

E. Executive Order 12866 (Regulatory 

Planning and Review), Executive Order 

13563 (Improving Regulation and 

Regulatory Review), and Executive 

Order 14094 (Modernizing Regulatory 

Review) 

Executive Order 12866, Regulatory 

Planning and Review, 58 FR 51735 

(Sept. 30, 1993), Executive Order 13563, 

Improving Regulation and Regulatory 

Review, 76 FR 3821 (Jan. 18, 2011), and 

Executive Order 14094, Modernizing 

Regulatory Review, 88 FR 21879 (Apr. 6, 

2023), 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 also 

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 IFR 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 IFR 

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 IFR will not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, Federalism, 64 FR 43225, 

43257–58 (Aug. 4, 1999), it is 

determined that this IFR does not have 

sufficient federalism implications to 

warrant the preparation of a federalism 

summary impact statement. 

G. Executive Order 12988 (Civil Justice 

Reform) 

This IFR meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988, 61 FR 

4729, 4730–32 (Feb. 5, 1996). 

H. Paperwork Reduction Act 

This IFR does not propose new or 

revisions to existing ‘‘collection[s] of 

information’’ as that term is defined 

under the Paperwork Reduction Act of 

1995, Public Law 104–13, 109 Stat. 163 

(May 22, 1995), codified at 44 U.S.C. 

3501 et seq., and its implementing 

regulations, 5 CFR part 1320. See 44 

U.S.C. 3502(3). 

List of Subjects in 28 CFR Part 68 

Administrative practice and 

procedure, Aliens, Citizenship and 

naturalization, Civil Rights, 

Employment, Equal employment 

opportunity, Immigration. 

Accordingly, for the reasons set forth 

in the preamble and by the authority 

vested in me as Attorney General by 

law, part 68 of title 28 of the Code of 

Federal Regulations is amended as 

follows: 

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 

■ 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. 

■ 2. Amend § 68.2 by revising the 

definitions of ‘‘Entry’’ and ‘‘Final 

agency order’’ to read as follows: 

§ 68.2 Definitions. 

* * * * * 

Entry means the date the 

Administrative Law Judge, the Chief 

Administrative Hearing Officer, or the 

Attorney General signs the order; 

Final agency order is an 

Administrative Law Judge’s final order, 

in cases arising under sections 274A, 

274B, and 274C of the INA, that has not 

been modified, vacated, or remanded by 

the Chief Administrative Hearing 

Officer pursuant to § 68.54, referred to 

the Attorney General for review 

pursuant to § 68.55(a) or accepted by the 

Attorney General for review pursuant to 

§ 68.55(b)(3). Alternatively, if the Chief 

Administrative Hearing Officer modifies 

or vacates the final order pursuant to 

§ 68.54, the modification or vacatur 

becomes the final agency order if it has 

not been referred to the Attorney 

General for review pursuant to 

§ 68.55(a) or accepted by the Attorney 

General for review pursuant to 


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Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / Rules and Regulations 70591 

§ 68.55(b)(3). If the Attorney General 

enters an order that modifies or vacates 

either the Chief Administrative Hearing 

Officer’s or the Administrative Law 

Judge’s order, the Attorney General’s 

order is the final agency order. 

* * * * * 

■ 3. Amend § 68.52 by revising 

paragraph (g) to read as follows: 

§ 68.52 Final order of the Administrative 

Law Judge. 

* * * * * 

(g) Final agency order. In a case 

arising under section 274A, 274B, or 

274C of the INA, the Administrative 

Law Judge’s order becomes the final 

agency order sixty (60) days after the 

date of entry of the Administrative Law 

Judge’s order, unless: 

(1) In a case arising under section 

274A or 274C of the INA, the Chief 

Administrative Hearing Officer 

modifies, vacates, or remands the 

Administrative Law Judge’s final order 

pursuant to § 68.54; or 

(2) In a case arising under section 

274A, 274B, or 274C of the INA, the 

order is referred to the Attorney General 

pursuant to § 68.55. 

■ 4. Amend § 68.55 by revising the 

section heading, paragraph (a), and the 

first sentence of paragraph (c) 

introductory text to read as follows: 

§ 68.55 Referral of cases arising under 

section 274A, 274B, or 274C to the Attorney 

General for review. 

(a) Referral of cases by direction of the 

Attorney General. The Chief 

Administrative Hearing Officer shall 

promptly refer to the Attorney General 

for review any final order in cases 

arising under section 274A, 274B, or 

274C of the INA if the Attorney General 

so directs the Chief Administrative 

Hearing Officer. For cases arising under 

section 274A and 274C, the Attorney 

General may so direct the Chief 

Administrative Hearing Officer within 

no more than thirty (30) days of the 

entry of a final order by the Chief 

Administrative Hearing Officer 

modifying or vacating an Administrative 

Law Judge’s final order, or within no 

more than sixty (60) days of the entry 

of an Administrative Law Judge’s final 

order, if the Chief Administrative 

Hearing Officer does not modify or 

vacate the Administrative Law Judge’s 

final order. For cases arising under 

section 274B, the Attorney General may 

so direct the Chief Administrative 

Hearing Officer within no more than 

sixty (60) days of the entry of a final 

order by the Administrative Law Judge. 

When a final order is referred to the 

Attorney General in accordance with 

this paragraph (a), the Chief 

Administrative Hearing Officer shall 

give the Administrative Law Judge and 

all parties a copy of the referral. 

* * * * * 

(c) * * * When a final order of an 

Administrative Law Judge or the Chief 

Administrative Hearing Officer is 

referred to the Attorney General 

pursuant to paragraph (a) of this section, 

or a referral is accepted in accordance 

with paragraph (b)(3) of this section, the 

Attorney General shall review the final 

order in accordance with the provisions 

of this section. * * * 

* * * * * 

■ 5. Amend § 68.56 by revising the first 

sentence to read as follows: 

§ 68.56 Judicial review of a final agency 

order in cases arising under section 274A 

or 274C. 

In cases arising under section 274A or 

274C of the INA, a person or entity 

adversely affected by a final agency 

order issued under § 68.52(c) or (e), 

§ 68.54(e), or § 68.55(d) may file, within 

forty-five (45) days after the date of the 

final agency order, a petition in the 

United States Court of Appeals for the 

appropriate circuit for review of the 

final agency order. * * * 

■ 6. Revise § 68.57 to read as follows: 

§ 68.57 Judicial review of a final agency 

order in cases arising under section 274B. 

In cases arising under section 274B of 

the INA, any person aggrieved by a final 

agency order issued under § 68.52(d) or 

§ 68.55(d) may, within sixty (60) days 

after entry of the order, seek review of 

the final agency order in the United 

States Court of Appeals for the circuit in 

which the violation is alleged to have 

occurred or in which the employer 

resides or transacts business. If a final 

agency order is not appealed, the 

Special Counsel (or, if the Special 

Counsel fails to act, the person filing the 

charge, other than the Department of 

Homeland Security) may file a petition 

in the United States District Court for 

the district in which the violation that 

is the subject of the final agency order 

is alleged to have occurred, or in which 

the respondent resides or transacts 

business, requesting that the order be 

enforced. 

Merrick B. Garland, 

Attorney General. 

[FR Doc. 2023–22206 Filed 10–11–23; 8:45 am] 

BILLING CODE 4410–30–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2023–0113] 

RIN 1625–AA09 

Drawbridge Operation Regulation; 

Cheboygan River at Cheboygan, MI 

AGENCY: Coast Guard, DHS. 

ACTION: Final rule. 

SUMMARY: The Coast Guard is altering 

the operating schedule that governs the 

US 23 Highway Bridge, mile 0.92, across 

the Cheboygan River—Part of the Inland 

Route, at Cheboygan, Michigan. The 

Cheboygan County Road Commission 

requested we extend the winter advance 

notice for the bridge. 

DATES: This rule is effective November 

13, 2023. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to https://

www.regulations.gov. Type the docket 

number USCG–2023–0113 in the 

‘‘SEARCH’’ box and click ‘‘SEARCH’’. In 

the Document Type column, select 

‘‘Supporting & Related Material.’’ 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Mr. Lee D. Soule, Bridge 

Management Specialist, Ninth Coast 

Guard District; telephone 216–902– 

6085, email Lee.D.Soule@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

DHS Department of Homeland Security 

FR Federal Register 

IGLD85 International Great Lakes Datum of 

1985 

MDNR Michigan Department of Natural 

Resources 

MDOT Michigan Department of 

Transportation 

OMB Office of Management and Budget 

LWD Low Water Datum based on IGLD85 

NPRM Notice of Proposed Rulemaking 

(Advance, Supplemental) 

§ Section 

U.S.C. United States Code 

II. Background Information and 

Regulatory History 

On April 5, 2023, the Coast Guard 

published an NPRM titled Drawbridge 

Operation Regulation; Cheboygan River 

at Cheboygan, MI in the Federal 

Register (88 FR 20082) and posted it on 

Regulations.gov for 60-days to seek your 

comments on whether the Coast Guard 

should consider modifying the current 

operating schedule to the US 23 


ddrumheller on DSK120RN23PROD with RULES1