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                                       Rules and Regulations                                                                                          Federal Register
                                                                                                                                                      Vol. 73, No. 243

                                                                                                                                                      Wednesday, December 17, 2008

                                       This section of the FEDERAL REGISTER                     ADDRESSES:  You may submit comments,                    D. Small Business Regulatory Enforcement
                                       contains regulatory documents having general             identified by DHS Docket No. USCIS–                       Fairness Act of 1996
                                       applicability and legal effect, most of which            2008–0001, by any of the following                      E. Executive Order 12866
                                       are keyed to and codified in the Code of                                                                         F. Executive Order 13132
                                                                                                methods:                                                G. Paperwork Reduction Act
                                       Federal Regulations, which is published under              • Federal eRulemaking Portal: http://
                                       50 titles pursuant to 44 U.S.C. 1510.                                                                          I. Public Participation
                                                                                       Follow the
                                       The Code of Federal Regulations is sold by               instructions for submitting comments.                    Interested persons are invited to
                                       the Superintendent of Documents. Prices of                 • Mail: Chief, Regulatory                           participate in this rulemaking by
                                       new books are listed in the first FEDERAL                Management Division, U.S. Citizenship                 submitting written data, views, or
                                       REGISTER issue of each week.                             and Immigration Services, Department                  arguments on all aspects of this interim
                                                                                                of Homeland Security, 111                             rule. Comments that will provide the
                                                                                                Massachusetts Avenue, NW., Suite                      most assistance to the Department of
                                       DEPARTMENT OF HOMELAND                                   3008, Washington, DC 20529–2210. To                   Homeland Security (DHS), U.S.
                                       SECURITY                                                 ensure proper handling, please                        Citizenship and Immigration Services
                                                                                                reference DHS Docket No. USCIS–2008–                  (USCIS) in developing these procedures
                                       8 CFR Part 274a                                          0001 on your correspondence. This                     will reference a specific portion of the
                                       [CIS No. 2441–08; Docket No. USCIS–2008–                 mailing address may be used for paper,                interim rule, explain the reason for any
                                       0001]                                                    disk, or CD–ROM submissions.                          recommended change, and include data,
                                                                                                  • Hand Delivery/Courier: Regulatory                 information, or authority supporting
                                       RIN 1615–AB69
                                                                                                Management Division, U.S. Citizenship                 that change.
                                       Documents Acceptable for                                 and Immigration Services, Department                     Instructions: All submissions received
                                       Employment Eligibility Verification                      of Homeland Security, 111                             must include the agency name and DHS
                                                                                                Massachusetts Avenue, NW., Suite                      Docket No. USCIS–2008–0001 for this
                                       AGENCY: U.S. Citizenship and                             3008, Washington, DC 20529–2210.                      rulemaking. All comments received will
                                       Immigration Services, DHS.                               Contact Telephone Number (202) 272–                   be posted without change to http://
                                       ACTION: Interim rule with request for                    8377.                                       , including any
                                       comments.                                                FOR FURTHER INFORMATION CONTACT:                      personal information provided.
                                                                                                Stephen McHale, Verification Division,                   Docket: For access to the docket to
                                       SUMMARY: The Department of Homeland
                                                                                                U.S. Citizenship and Immigration                      read background documents or
                                       Security (DHS) is amending its                                                                                 comments received, go to http://
                                       regulations governing the types of                       Services, Department of Homeland
                                                                                                Security, 470 L’Enfant Plaza East, SW.,      Submitted
                                       acceptable identity and employment                                                                             comments may also be inspected at the
                                       authorization documents and receipts                     Suite 8001, Washington, DC 20529–
                                                                                                2610, telephone (888) 464–4218 or e-                  Regulatory Management Division, U.S.
                                       that employees may present to their                                                                            Citizenship and Immigration Services,
                                       employers for completion of the Form I–                  mail at
                                                                                                SUPPLEMENTARY INFORMATION: The                        Department of Homeland Security, 111
                                       9, Employment Eligibility Verification.                                                                        Massachusetts Avenue, NW., Suite
                                       Under this interim rule, employers will                  supplementary section is organized as
                                                                                                follows:                                              3008, Washington, DC 20529–2210.
                                       no longer be able to accept expired
                                       documents to verify employment                           Table of Contents                                     II. Background and Purpose
                                       authorization on the Form I–9. This rule                 I. Public Participation                                  All employers and agricultural
                                       also adds a new document to the list of                  II. Background and Purpose                            recruiters and referrers for a fee 2
                                       acceptable documents that evidence                       III. Changes to the List of Acceptable                (hereinafter collectively referred to as
                                       both identity and employment                                   Documents and Receipts                          ‘‘employer(s)’’) are required to verify the
                                       authorization and makes several                             A. Requiring Unexpired, Valid Documents            identity and employment authorization
                                       technical corrections and updates. The                      B. Adding Documentation for Citizens of
                                                                                                      the Federated States of Micronesia and
                                                                                                                                                      of each individual they hire for
                                       purpose of this rule is to improve the                                                                         employment in the United States,
                                                                                                      the Republic of the Marshall Islands
                                       integrity of the employment verification                                                                       regardless of the individual’s
                                                                                                   C. Revising References to Temporary
                                       process so that individuals who are                            I–551s                                          citizenship. See Immigration and
                                       unauthorized to work are prevented                          D. Eliminating Forms I–688, I–688A, and            Nationality Act (INA) section
                                       from obtaining employment in the                               I–688B                                          274A(a)(1)(B), 8 U.S.C. 1324a(a)(1)(B).
                                       United States. A copy of the amended                        E. Adding References to Form I–94A                 As part of the verification process,
                                       Form I–9 reflecting these and other                         F. Revising Reference to Social Security           employers must complete the Form I–9,
                                       form-related changes is being published                        Account Number Card
                                                                                                                                                      ‘‘Employment Eligibility Verification,’’
                                       as an attachment to this rule.1                          IV. Technical Changes
                                                                                                   A. Correcting References to Employment             retain the form for a statutorily-
                                       DATES: Effective Date. This rule is                            Eligibility
                                       effective February 2, 2009.                                 B. Replacing References to the Former INS            2 Title 8 CFR 274a.2(a)(1) provides that ‘‘[f]or

                                          Comment Date: Written comments                           C. Correcting References to Certificates of        purposes of complying with section 274A(b) of the
                                       must be submitted on or before February                                                                        Act and this section, all references to recruiters and
                                                                                                      Birth Abroad in List C
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                                                                                                                                                      referrers for a fee are limited to a person or entity
                                       2, 2009.                                                 V. Form Changes                                       who is either an agricultural associations,
                                                                                                VI. Regulatory Requirements                           agricultural employers, or farm labor contractors (as
                                         1 Note: Form I–9 is published for informational           A. Administrative Procedure Act                    defined in section 3 of the Migrant and Seasonal
                                       purposes only and will not be codified in Title 8           B. Regulatory Flexibility Act                      Agricultural Worker Protection Act, Pub. L. 97–
                                       of the Code of Federal Regulations.                         C. Unfunded Mandates Reform Act of 1995            470).’’ * * * See 8 CFR 274a.2(a)(1).

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                                       76506         Federal Register / Vol. 73, No. 243 / Wednesday, December 17, 2008 / Rules and Regulations

                                       established period of time, and make the                specific circumstances prescribed under                 rule following the 1998 proposed rule.
                                       form available for inspection by certain                8 CFR 274.a.2(b)(1)(vi). For example, if                Instead, this rulemaking action
                                       government officials. See INA sec.                      a document acceptable under Lists A, B,                 supersedes the 1998 NPRM, although
                                       274A(b), 8 U.S.C. 1324a(b); 8 CFR                       or C is stolen or lost, the new hire may                comments received during that
                                       274a.2. On the Form I–9, a newly-hired                  provide a receipt for the application for               rulemaking action informed the
                                       employee must attest to being a U.S.                    the replacement document, in lieu of                    development of this rulemaking action.
                                       citizen or national, a lawful permanent                 the actual document, as long as he or                      DHS recognizes that the Form I–9
                                       resident (LPR), or an alien authorized to               she provides the replacement document                   process plays an integral role in
                                       work in the United States. The                          within 90 days of hire. If the individual               ensuring a legal workforce in the United
                                       employee then must present to his or                    employee is an alien whose                              States and is committed to minimizing
                                       her employer a document or                              employment authorization or                             vulnerabilities in the Form I–9 process.
                                       combination of documents designated                     employment authorization                                As is evident from past legislative action
                                       by statute and regulation as acceptable                 documentation expires, the employer                     and rulemaking efforts, an overly
                                       for establishing identity and                           must reverify the employee’s continued                  expansive Form I–9 document list that
                                       employment authorization. The                           employment authorization by the                         includes expired documents
                                       employer must examine the documents,                    expiration date by reviewing any                        compromises the effectiveness and
                                       record the document information on                      acceptable list A or list C document.4 8                security of the Form I–9 process. After
                                       Form I–9, and attest that the documents                 CFR 274a.2(b)(1)(vii).                                  reevaluating the statutory requirements
                                       reasonably appear both to be genuine                       The former Immigration and                           (INA sec. 274A(b)(1), 8 U.S.C.
                                       and to relate to the individual                         Naturalization Service (INS) issued the                 1324a(b)(1)) and reviewing the
                                       presenting the documents.                               first Form I–9 and list of acceptable                   regulatory list of documents currently
                                          The Form I–9 has three categories of                 documents in 1987. 52 FR 16216–01                       acceptable for the Form I–9, DHS has
                                       documents that may be accepted, alone                   (May 1, 1987) (regulatory list of                       identified several aspects of the list that
                                       or in combination, by employers for                     acceptable documents); 52 FR 21454–01                   are in need of change in order to
                                       employment authorization verification:                  (Jun. 5, 1987) (Notice introducing Form                 strengthen the effectiveness of the Form
                                          (1) List A—documents that establish                  I–9); see also 53 FR 8611–01 (Mar. 16,                  I–9 process. In so doing, this interim
                                       both identity and employment                            1988). After reports that the large                     rule introduces a requirement that all
                                       authorization 3 (e.g., U.S. passport; Form              number of acceptable Form I–9                           documents must be unexpired for the
                                       I–551, ‘‘Permanent Resident Card;’’ and                 documents led to employer confusion                     Form I–9. DHS invites post-
                                       Form I–766, ‘‘Employment                                and that a reduction in the number of                   promulgation comments from the public
                                       Authorization Document’’);                              documents could lead to less                            on this interim rule for consideration in
                                          (2) List B—documents that establish                  employment discrimination, INS                          a subsequent final rule.
                                       only identity (e.g., State-issued driver’s              published rules in 1993 and 1995
                                       license or identification card); and                    proposing reductions in the number of                   III. Changes to the List of Acceptable
                                          (3) List C—documents that establish                  acceptable documents. See 60 FR                         Documents and Receipts
                                       only employment authorization (e.g.,                    32472–01 (Jun. 22, 1995); 58 FR 61846–                  A. Requiring Unexpired, Valid
                                       State-issued birth certificate and social               01 (Nov. 23, 1993). Thereafter, in                      Documents
                                       security account number card).                          response to legislative action reducing
                                          See INA sec. 274A(b)(1)(B), (C) and                                                                             Under current regulations, the U.S.
                                                                                               the statutory list of acceptable                        passport and all List B documents are
                                       (D), 8 U.S.C. 1324a(b)(1)(B), (C) and (D);              documents,5 INS published an interim
                                       8 CFR 274a.2(b)(1)(v)(A), (B) and (C). An                                                                       acceptable for the Form I–9 even if they
                                                                                               rule in 1997 and a proposed rule in                     are expired. See 8 CFR
                                       individual must present to his or her                   1998. 62 FR 51001 (Sept. 30, 1997)
                                       employer either one document from List                                                                          274a.2(b)(1)(v)(A)(1) and (B). Using its
                                                                                               (interim rule), modified by 64 FR 6187                  authority to place conditions on
                                       A or one document each from List B and                  (Feb. 9, 1999); 63 FR 5287 (Feb. 2, 1998)
                                       List C. The employer may not specify a                                                                          acceptable documents for the Form I–9
                                                                                               (proposed rule). On November 7, 2007,                   (see INA sec. 274A(b)(1)(E), 8 U.S.C.
                                       document or combination of documents                    USCIS issued a press release notifying
                                       that the employee must present. INA                                                                             1324a(b)(1)(E)), DHS is providing in this
                                                                                               the public that the Form I–9 had been                   rule that expired documents are no
                                       sec. 274B(a)(6), 8 U.S.C. 1324b(a)(6); 8                revised to reflect changes to documents
                                       CFR 274a.1(l)(2).                                                                                               longer acceptable for the Form I–9. See
                                                                                               implemented under the 1997 interim                      revised 8 CFR 274a.2(b)(1)(v). DHS has
                                          If the employee cannot present an
                                                                                               rule. See ‘‘USCIS Revises Employment                    determined that this action is necessary
                                       acceptable document from one of the
                                                                                               Eligibility Verification Form’’ (Nov. 7,                to ensure that acceptable documents
                                       three lists, he or she may present an
                                                                                               2007) at                    reliably establish identity and
                                       acceptable substitute document, referred
                                                                                               pressrelease/FormI9Update110707.pdf.                    employment authorization and that
                                       to as a ‘‘receipt.’’ 8 CFR 274a.2(b)(1)(vi)
                                                                                               This press release was followed by a                    documents that are used fraudulently to
                                       (commonly referred to as ‘‘the receipt
                                                                                               notice published in the Federal Register                an unacceptable degree are not included
                                       rule’’). The receipt satisfies the
                                                                                               describing the changes made to the                      on the list of acceptable documents.
                                       document presentation requirement for
                                                                                               Form I–9 and stating when DHS will                      Expired documents are prone to
                                       a short period of time, at the end of
                                                                                               begin enforcing the changes. 72 FR                      fraudulent use in the Form I–9 process
                                       which the employee must present the
                                                                                               65974–01 (Nov. 26, 2007). Neither the                   by aliens seeking unauthorized
                                       actual document or other document(s)
                                                                                               former INS nor USCIS published a final                  employment. Being of little use to their
                                       specified in the regulations as
                                       acceptable to present. An employer may                     4 Note that an expiration date on Form I–551 does
                                                                                                                                                       owners, expired documents fall prey to
                                       accept a receipt, however, only under                   not trigger the reverification requirement. See         counterfeiters who, for a small sum, can
                                                                                               ‘‘Handbook for Employers, Instructions for              substitute unauthorized aliens’
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                                          3 Current regulations use the term ‘‘employment      Completing the Form I–9’’ (M–274) (Rev. 11/01/07),      photographs and other identifying
                                       eligibility’’ rather than ‘‘employment        , ‘‘Handbook for Employers’’)       information. Unauthorized aliens then
                                       authorization.’’ To be consistent with the statute,     page 26.
                                       this rulemaking uses the term ‘‘employment                 5 Illegal Immigration Reform and Immigrant           use these documents to obtain
                                       authorization.’’ See INA sec. 274A(b)(1)(B) and (C),    Responsibility Act (IIRIRA), section 412, Pub. L. No.   employment. Establishing a requirement
                                       8 U.S.C. 1324a(b)(1)(B) and (C).                        104–208, 110 Stat. 3009–666 (1996).                     that all documents must be unexpired

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                                                    Federal Register / Vol. 73, No. 243 / Wednesday, December 17, 2008 / Rules and Regulations                                         76507

                                       closes this loophole and sets a bright-                 Document’’). Rather than modify each                  temporary I–551 stamps to LPRs on
                                       line standard for U.S. employers.                       acceptable document with the term                     either unexpired foreign passports or
                                       Moreover, such a requirement honors                     ‘‘unexpired,’’ this rule imposes a general            Forms I–94, ‘‘Arrival-Departure
                                       the limits placed by document issuance                  requirement that all documents must be                Record,’’ to serve as temporary
                                       authorities on their documents. Finally,                unexpired to be acceptable for the Form               documentation of LPR status while they
                                       by requiring unexpired documents,                       I–9. See revised 8 CFR 274a.2(b)(1)(v). A             wait for the actual Form I–551.
                                       there is a greater likelihood that such                 document containing no expiration                     Although the regulations refer to
                                       documents will contain up-to-date                       date, such as the Social Security                     temporary I–551 ‘‘stamps,’’ DOS has
                                       security features that will make them                   account number card, will be deemed                   been affixing machine-readable
                                       less vulnerable to counterfeiting and                   unexpired.                                            immigrant visas (MRIVs) that contain a
                                       fraud.                                                     DHS invites comments on whether                    pre-printed temporary I–551 notation in
                                          In its 1998 proposed rule, the former                this rule’s prohibition on the use of                 the foreign passports of aliens
                                       INS proposed precluding expired                         expired documents for the Form I–9                    immigrating to the United States for
                                       documents from use for the Form I–9.                    should be modified to permit employers                several years. The pre-printed
                                       63 FR at 5302. Out of the 73 comments                   to accept List B identity documents that              temporary I–551 notation is triggered
                                       received in response to the proposed                    have expired within the last 90 days (or              after the bearer is admitted to the United
                                       rule, 15 comments addressed this                        other limited time period) of the date                States as an LPR. To update the
                                       proposal. Five commenters favored the                   they are presented to the employer for                regulations to reflect this alternate
                                       change. Ten commenters indicated a                      the Form I–9.                                         temporary I–551 document, this rule
                                       clear preference against the change,                                                                          modifies the reference in List A to
                                                                                               B. Adding Documentation for Citizens of
                                       focusing primarily on identity                                                                                temporary I–551 stamps on unexpired
                                                                                               the Federated States of Micronesia and
                                       documents with some specifying that                                                                           foreign passports to include pre-printed
                                                                                               the Republic of the Marshall Islands
                                       their objection applied to List B                                                                             temporary I–551 notation on MRIVs. 8
                                       documents only. Those who favored the                      In 2003, the Compacts of Free                      CFR 274a.2(b)(1)(v)(A)(3). Because the
                                       change stated that expired documents                    Association between the United States                 pre-printed notation is not included on
                                       do not provide a reliable representation                and the Federated States of Micronesia                Forms I–94, this rule does not make any
                                       of the holder’s identity, such as when                  (FSM) and Republic of the Marshall                    changes to regulatory references to
                                       the expired document includes an                        Islands (RMI) were amended. See                       temporary I–551 stamps on Forms I–94.
                                       outdated photograph.                                    Compact of Free Association                           See 8 CFR 274a.2(b)(1)(vi)(B).
                                          DHS considered the comments from                     Amendments Act of 2003, Public Law
                                       the 1998 proposed rule for this interim                 108–188 (2003). Under both the                        D. Eliminating Forms I–688, I–688A,
                                       rule and has noted them in this                         preexisting Compacts and the Compacts                 and I–688B
                                       discussion to acknowledge that some                     as amended, most citizens of the RMI                     DHS notes that Form I–688,
                                       members of the public may face                          and the FSM are eligible for admission                ‘‘Temporary Resident Card,’’ and Forms
                                       challenges in accessing unexpired                       to the United States as nonimmigrants,                I–688A and I–688B, ‘‘Employment
                                       documents for Form I–9 purposes. As                     including the privilege of residing and               Authorization Cards,’’ are no longer
                                       stated above, DHS believes that                         working in the United States. The                     issued and has determined that any
                                       precluding the use of expired                           amendments to the Compacts included                   such documents that were previously
                                       documents for the Form I–9 is essential                 provisions that eliminated the need for               issued have expired. Therefore, this rule
                                       for improving the security of the                       citizens of the FSM and the RMI to                    removes these documents from List A
                                       employment verification process. The                    obtain an Employment Authorization                    and any references to the documents in
                                       U.S. Department of State (DOS), DHS,                    Document (Form I–766), although they                  the receipt provision at 8 CFR
                                       and many States have taken and are                      may still apply for one if they wish. As              274a.2(B)(1)(vi)(C). USCIS now issues
                                       continuing to take significant steps to                 provided by the Compact Amendments,                   Forms I–766 to those who formerly
                                       improve the security features of their                  FSM and RMI citizens admitted under                   received Forms I–688, I–688A, or I–
                                       documents. See Emergency                                the Compacts may present valid FSM or                 688B. The Form I–766 remains on List
                                       Supplemental Appropriations Act for                     RMI passports with evidence of their                  A. 8 CFR 274a.2(b)(1)(v)(A)(4).
                                       Defense, the Global War on Terror, and                  admission under the Compacts to satisfy
                                       Tsunami Relief, 2005; REAL ID Act of                    Form I–9 requirements.6 To conform the                E. Adding References to Form I–94A
                                       2005, div. B, Public Law No. 109–13,                    Form I–9 regulations with the                            This rule updates the list of
                                       119 Stat. 231, 302 (2005) (codified at 49               requirements of the Compacts, USCIS is                acceptable documents and receipts by
                                       U.S.C. 30301 note); Enhanced Border                     including a List A provision specifically             including ‘‘Form I–94A’’ next to each
                                       Security and Visa Entry Reform Act of                   tailored to these FSM and RMI citizens.               reference to the Form I–94, ‘‘Arrival-
                                       2002, section 303(b), Public Law 107–                   See new 8 CFR 274a.2(b)(1)(v)(A)(6).                  Departure Record.’’ See revised 8 CFR
                                       173, 116 Stat. 543, 553 (2002). In                      C. Revising References to Temporary I–                274a.2(b)(1)(v)(A)(5) and (b)(1)(vi)(B)
                                       keeping with these efforts, DHS has                     551s                                                  and (C). The Form I–94A is nearly
                                       determined that it is appropriate to                                                                          identical to the Form I–94 except that
                                       amend the regulations governing the                       List A refers to temporary I–551                    all fields are computer-generated rather
                                       Form I–9 process to require that all                    stamps in unexpired foreign passports                 than being annotated by hand.
                                       documents must be unexpired to be                       as acceptable documents. See 8 CFR
                                       acceptable for the Form I–9.                            274a.2(b)(1)(v)(A)(3). DHS issues                     F. Revising Reference to Social Security
                                          To modify the current regulations,                                                                         Account Number Card (‘‘Social Security
                                       this rule removes the terms ‘‘unexpired’’
                                                                                                 6 There is also a Compact of Free Association       Card’’)
                                                                                               with the Republic of Palau (Compact of Free
                                       and ‘‘expired’’ from those documents                    Association Approval Act, Pub. L. No. 99–658 (Nov.       This interim rule replaces the current
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                                       currently listed in the regulations with                14, 1986)) providing similar employment and           reference to the List C document,
                                       these limitations (e.g., ‘‘unexpired                    residency privileges for citizens of Palau, but the   ‘‘Social Security number card,’’ with the
                                                                                               Compact has not been amended to include a similar
                                       foreign passport that contains a                        Form I–9 documentation provision. Therefore, the
                                                                                                                                                     statutory term ‘‘Social Security account
                                       temporary I–551 stamp’’ and                             amendment to the regulations does not include         number card.’’ Revised 8 CFR
                                       ‘‘unexpired Employment Authorization                    Palau.                                                274a.2(b)(1)(v)(C)(1). This document is

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                                       76508        Federal Register / Vol. 73, No. 243 / Wednesday, December 17, 2008 / Rules and Regulations

                                       commonly referred to as the Social                      C. Correcting References to Certificates              Marshall Islands). For such employees,
                                       Security card. The rule also revises the                of Birth Abroad in List C                             reverification does not apply unless
                                       restriction on the acceptability of Social                Current regulations incorrectly                     they choose to present in Section 2
                                       Security account number cards. The                      identify the List C documents, Forms                  evidence of employment authorization
                                       statute provides that a Social Security                 FS–545 and DS–1350 issued by the                      that contains an expiration date (e.g.,
                                       account number card, ‘‘other than such                  Department of State, as ‘‘Certification of            Employment Authorization Document
                                       a card which specifies on the face that                 Birth Abroad.’’ 8 CFR                                 (Form I–766)).’’
                                       the issuance of the card does not                       274a.2(b)(1)(v)(C)(2) and (3). This rule              Form I–9 will be included as an
                                       authorize employment in the United                      corrects this error. The Form FS–545 is               attachment to this rule. It will also be
                                       States’’ is an acceptable List C                        correctly entitled, ‘‘Certification of                made available in Spanish and posted
                                       document. See INA sec.                                  Birth,’’ and Form DS–1350 is correctly                on the USCIS Web site (http://
                                       274A(b)(1)(C)(i), 8 U.S.C.                              entitled, ‘‘Certification of Report of       at a later date.
                                       1324a(b)(1)(C)(i). The current                          Birth.’’                                              VI. Regulatory Requirements
                                       regulations provide that unacceptable
                                       cards are those that include the                        V. Form Changes                                       A. Administrative Procedure Act
                                       following legend: ‘‘not valid for                          In implementing the regulatory                        The Administrative Procedure Act
                                       employment purposes.’’ 8 CFR                            changes being made by this rule, DHS                  (APA) provides that an agency may
                                       274a.2(b)(1)(v)(C)(1). Over the years                   also is revising the Form I–9 itself.                 dispense with notice and comment
                                       since Social Security account number                    Changes to the Form I–9, in addition to               rulemaking procedures when an agency,
                                       cards have included employment                          revisions to the list of acceptable                   for ‘‘good cause,’’ finds that those
                                       restrictions, the legend printed on the                 documents, include:                                   procedures are ‘‘impracticable,
                                       face of the cards has changed. Therefore,                  • In Section 1, making ‘‘citizen of the            unnecessary, or contrary to the public
                                       the restriction stated in the current                   United States’’ and ‘‘noncitizen national             interest.’’ See 5 U.S.C. 553(b)(B). DHS
                                       regulations is inadequate. This rule                    of the United States, as defined in 8                 finds advance notice and comment for
                                       revises the restriction to track the                    U.S.C. 1408’’ two separate categories in              this rule to be impracticable,
                                       statutory language.                                     the employee attestation part of the                  unnecessary, and contrary to the public
                                       IV. Technical Changes                                   form. Currently, the first box in that                interest.
                                                                                               section states: ‘‘A citizen or national of               In its 1998 proposed rule, the former
                                       A. Correcting References to Employment                  the United States.’’ Separating those two             INS proposed precluding expired
                                       Eligibility                                             groups will eliminate one difficulty that             documents from use for the Form I–9.
                                                                                               currently exists when prosecuting those               63 FR at 5302. The INS received 15
                                          This interim rule replaces the term                                                                        comments on the proposal to remove
                                                                                               who make false claims to U.S.
                                       ‘‘employment eligibility’’ with                                                                               expired documents as discussed above.
                                                                                               citizenship. Noncitizen nationals of the
                                       ‘‘employment authorization’’ in each                                                                          Therefore, although the INS did not
                                                                                               United States are persons born in
                                       place that ‘‘employment eligibility’’                                                                         finalize that NPRM, USCIS has
                                                                                               American Samoa as provided in section
                                       appears in the verification provisions of                                                                     considered those public comments in
                                                                                               308 of the INA, 8 U.S.C. 1408; certain
                                       the regulations relevant to the                                                                               the development of this interim rule and
                                                                                               former citizens of the former Trust
                                       substantive changes made by this rule,                                                                        DHS has concluded that further public
                                                                                               Territory of the Pacific Islands who
                                       8 CFR 274a.2(a) and (b)(1). This change                                                                       comment on this issue would be
                                                                                               relinquished their U.S. citizenship
                                       is necessary to conform the regulations                                                                       unnecessary under the APA.
                                                                                               acquired under section 301 of Public
                                       to the statute, which uses the term                                                                              DHS understands that this rule is a
                                                                                               Law 94–241 (establishing the
                                       ‘‘employment authorization’’ and not                                                                          change in its longstanding practice of
                                                                                               Commonwealth of the Northern Mariana
                                       ‘‘employment eligibility.’’ See INA sec.                                                                      accepting expired documents. However,
                                                                                               Islands) by executing a declaration
                                       274A(b)(1)(B) and (C), 8 U.S.C.                                                                               advances in technology since the
                                                                                               before an appropriate court that they
                                       1324a(b)(1)(B) and (C).                                                                                       original issuance of these regulations
                                                                                               intended to be noncitizen nationals
                                          In addition, DHS revised the section                 rather than U.S. citizens; and certain                and Form I–9, especially in recent years,
                                       heading to 8 CFR 274a.2 to more                         children of noncitizen nationals born                 increase the need for DHS to make sure
                                       accurately reflect the contents of this                 abroad, as provided by section 308 of                 that documents accepted for identity
                                       section. Currently, the section heading                 the INA, 8 U.S.C. 1408. A definition of               and work authorization purposes have
                                       reads, ‘‘Verification of employment                     noncitizen national is added to the                   sufficient security features and continue
                                       eligibility.’’ This rule revises the section            instructions to the Form I–9.                         to ensure the integrity of the
                                       heading to read, ‘‘Verification of                         • In Section 1, replacing ‘‘An alien               employment verification process.7
                                       identity and employment                                 authorized to work until l/l/l (Alien                 Employment documentation
                                       authorization.’’                                        # or Admission llllllll’’ with                        requirements must be strengthened as
                                                                                               ‘‘An alien authorized to work (A# or                  soon as possible in order for DHS
                                       B. Replacing References to the Former                                                                         enforcement capabilities to stay ahead
                                       INS                                                     Admission #llllll ) until
                                                                                               (expiration date, if applicable—month/                of document counterfeiters; requiring
                                          This rule deletes references to the                  day/year) l/l/l’’.                                    that documents be unexpired is one way
                                       former INS or replaces such references                     • In the form instructions, including              to help ensure this. Continued delay
                                       with ‘‘DHS’’ wherever ‘‘INS’’ appears in                a paragraph that clarifies when                       created by the notice and comment
                                       the provisions affected by this rule. See               employers need to reverify certain                    requirements would result in additional
                                       revised 8 CFR 274a.2(b)(1)(v)(A)(4) and                 employees to read as follows:                         damage to these important interests.
                                       (b)(1)(v)(C)(6), (7), and (8). After a                     ‘‘Note that some employees may leave                  Accordingly, DHS finds that good
                                                                                                                                                     cause exists under 5 U.S.C. 553(b) to
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                                       transfer of functions to DHS, the INS                   the expiration date blank if they are
                                       was abolished in March 2003. See 6                      aliens whose work authorization does                    7 DHS Fact Sheet: Combating Fraudulent
                                       U.S.C. 291; Homeland Security Act of                    not expire (e.g., asylees, refugees,                  Documents. August 1, 2006. Available at http://
                                       2002, Public Law No. 107–296, 116 Stat.                 certain citizens of the Federated States    
                                       2135 (Nov. 25, 2002).                                   of Micronesia or the Republic of the                  pr_1158347347660.shtm.

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                                                    Federal Register / Vol. 73, No. 243 / Wednesday, December 17, 2008 / Rules and Regulations                                          76509

                                       issue this rule as an interim rule. DHS                 section 3(f), Regulatory Planning and                 per response for learning about the
                                       nevertheless invites written comments                   Review. Accordingly, this interim rule                form, completing the form, and
                                       on this interim rule and will consider                  has been reviewed by the Office of                    assembling and filing the form. Because
                                       those comments in the development of                    Management and Budget.                                this training facet would add a few
                                       a final rule in this action.                               Employees are already completing,                  minutes to that time burden to read this
                                                                                               and employers are already retaining,                  rule and compare the new and old Form
                                       B. Regulatory Flexibility Act                           Forms I–9. Employers are also                         I–9 lists, DHS estimates that each
                                          The Regulatory Flexibility Act (RFA),                conducting re-verifications when                      employer will each need approximately
                                       5 U.S.C. 605(b), as amended by the                      employment authorization expires.                     30 minutes to research the changes
                                       Small Business Regulatory Enforcement                   Likewise, U.S. Immigration and                        made by this rule and learn what an
                                       and Fairness Act of 1996 (SBREFA),                      Customs Enforcement (ICE) agents                      acceptable Form I–9 supporting
                                       requires an agency to prepare and make                  already conduct Form I–9 enforcement                  document is after this rule takes effect.
                                       available to the public a regulatory                    actions. Therefore, this interim rule is              According the U.S. Department of
                                       flexibility analysis that describes the                 not expected to impose significant new                Labor, Bureau of Labor Statistics
                                       effect of the rule on small entities (i.e.,             or recurring costs on employers, new                  quarterly report, ‘‘Employer Costs for
                                       small businesses, small organizations,                  employees, or the government.                         Employee Compensation,’’ employer
                                       and small governmental jurisdictions).                     Costs for employers. After publication             compensation costs for all civilian
                                       However, when an agency invokes the                     of this rule, there will be some costs                occupations averages $28.11 per hour
                                       good cause exception under the                          associated with becoming familiar with                worked. Therefore, based on 30 minutes
                                       Administrative Procedure Act (APA) to                   the new requirements, switching to the                per employer for 5.54 million
                                       make changes effective through an                       new forms, and retraining personnel                   employers, this rule will cost all
                                       interim final rule, the RFA does not                    who are familiar with the existing                    employers nationwide a total of
                                       require the agency to prepare a                         requirements. All employers and                       $77,864,700 to familiarize themselves
                                       regulatory flexibility analysis. This rule              agricultural recruiters and referrers for a           with the new requirements, switch to
                                       makes changes for which notice and                      fee are required to verify the identity               the new forms, and retrain personnel.
                                       comment are not necessary and,                          and employment authorization of each                  This is, however, a one-time and not a
                                       accordingly, USCIS has not prepared a                   individual they hire for employment in                repeating or annual cost. Once the
                                       regulatory flexibility analysis.                        the United States, regardless of the                  transition to this interim rule and new
                                                                                               individual’s citizenship. The number of               Form I–9 is complete, DHS anticipates
                                       C. Unfunded Mandates Reform Act of                      employees hired each year varies greatly
                                       1995                                                                                                          that the costs incurred by employers
                                                                                               among firms as does the number of                     will be lower than under the existing
                                          Title II of the Unfunded Mandates                    employees that each firm has devoted to
                                                                                                                                                     rule because the modified lists of
                                       Reform Act of 1995 requires each                        the hiring process. Based on an analysis
                                                                                                                                                     acceptable forms is expected to reduce
                                       Federal agency to prepare a written                     of data from the U.S. Department of
                                                                                                                                                     confusion. DHS believes that the
                                       assessment of the effects of any Federal                Agriculture, National Agricultural
                                                                                                                                                     reduced number of documents that may
                                       mandate in a proposed or final agency                   Census 8, and, U.S. Department of Labor,
                                                                                                                                                     be presented for verification, simplified
                                       rule that may result in the expenditure                 Bureau of Labor Statistics, Business
                                                                                                                                                     design of the Form I–9, and more
                                       by State, local, and tribal governments,                Employment Dynamics,9 DHS has
                                                                                                                                                     comprehensive instructions provided
                                       in the aggregate, or by the private sector,             determined that there are approximately
                                                                                                                                                     with the form, will make the verification
                                       of $100 million or more (adjusted                       554,000 farms, around 90,000 local
                                                                                                                                                     process for employers easier than it is
                                       annually for inflation) in any one year.                government jurisdictions, and
                                       As outlined in the Executive Order                      approximately 4.9 million firms in the
                                       12866 section of this rule below, this                  private sector of the U.S. economy that                  Costs for employees. By reducing the
                                       rule may result in the expenditure in the               could possibly hire an employee in the                number of documents that are
                                       aggregate by the private sector of more                 year after this rule takes effect. While              acceptable, this rule will require a
                                       than $100 million in the first year                     many farms and companies hire no                      newly hired employee to expend some
                                       following its publication. However,                     employees in a given year requiring                   time, effort, and expense in order to
                                       there are no recurring costs and it will                submission of no Forms I–9, DHS                       obtain an acceptable, unexpired
                                       not significantly or uniquely affect small              assumed that the largest possible                     document. For example, a new hire who
                                       governments or other small entities.                    universe of employers would be affected               was able to use an expired passport or
                                       Further, no action on the part of any                   by the rule in its first year in effect, or           U.S. military identification card before
                                       state, tribe, or other governmental entity              all entities. That means there are a total            this rule rendered those documents
                                       is required by this rule’s changes.                     of about 5.54 million farms, businesses,              unacceptable will now need to obtain a
                                       Therefore, no actions were deemed                       and governmental entities in the U.S.                 current, unexpired document. Those
                                       necessary under the provisions of the                   that must obtain a Form I–9 from their                individuals who could have used an
                                       Unfunded Mandates Reform Act of                         new hires. DHS also assumed that each                 expired document will incur a cost to
                                       1995.                                                   of the affected firms will incur a small              obtain an alternative document, such as
                                                                                               cost to learn about the new form and                  a State-issued driver’s license or
                                       D. Small Business Regulatory                            regulations. The Office of Management                 identification card, which can be
                                       Enforcement Fairness Act of 1996                        and Budget (OMB) approved                             presented with their social security card
                                         This rule is not a major rule as                      information collection reporting burden               or birth certificate, or a passport card or
                                       defined by section 804 of the Small                     for Form I–9 is an average of 12 minutes              passport. In order to provide an example
                                       Business Regulatory Enforcement Act of                                                                        that will illustrate this potential impact,
                                       1996. 5 U.S.C. 804.                                       8 Economic Class of Farms by Market Value of        DHS has examined what that cost may
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                                                                                               Agricultural Products Sold and Government             be. DHS obtained a list of the amounts
                                       E. Executive Order 12866                                Payments: 2002       charged for State-issued driver’s
                                         This rule is considered by DHS to be                    9 New Quarterly Data from BLS on Business           licenses or identification cards in every
                                       an ‘‘economically significant regulatory                Employment Dynamics by Size of Firm, 2005             state in the U.S. and the District of
                                       action’’ under Executive Order 12866,                 Columbia from the American

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                                       76510        Federal Register / Vol. 73, No. 243 / Wednesday, December 17, 2008 / Rules and Regulations

                                       Association of Motor Vehicle                            an average of $14.40 for an                           collection of information, including the
                                       Administrators (AAMVA). The average                     identification card. In addition, DHS                 validity of the methodology and
                                       cost to obtain a state-issued photo                     estimates that expenses for each affected             assumptions used;
                                       identification card was found to be                     person would also include spending                      (3) Enhance the quality, utility, and
                                       $14.40. The U.S. Department of State                    about 4 hours of their personal time to               clarity of the information to be
                                       charges $100 for a passport for someone                 obtain the card and that the worker                   collected; and
                                       age 16 and over, and a passport card                    gives up this amount of time engaging                   (4) Minimize the burden of the
                                       costs $20. Thus, it assumed for this                    in a leisure activity. According to                   collection of the information on those
                                       example, logically, that those                          guidelines used by the U.S. Department                who are to respond, including through
                                       individuals who could have used an                      of Transportation on the values of travel             the use of any and all appropriate
                                       expired document before this rule will                  time, the opportunity cost of leisure                 automated, electronic, mechanical, or
                                       choose the lower-cost option and obtain                 time forgone for travel is calculated as              other technological collection
                                       a state identification card.                            50 percent of wages. Using the employer               techniques or other forms of information
                                          According to the U.S. Department of                  compensation costs per hour for all                   technology, e.g., permitting electronic
                                       Transportation, Federal Highway                         civilian occupations of $28.11, the value             submission of responses.
                                       Administration, of the 233 million                      of leisure per hour is about $14.06.
                                       people in the United States who are in                  Thus, a person could be required to                   Overview of This Information
                                       the driving age population (age 16 and                  expend up to $14.40 in cash and $56.20                Collection
                                       over), 209 million, or 87 percent, have                 in opportunity costs, or total costs of
                                       a State-issued driver’s license.10 Also, as                                                                      (1) Type of Information Collection:
                                                                                               $70.60, to obtain a State-issued                      Revision of a currently approved
                                       of 2006, almost 33 million State-issued                 identification card because of the
                                       identification cards were in effect.                                                                          information collection.
                                                                                               changes made by this rule. Using the 1.2
                                       Therefore, there are approximately 242                  percent figure from the AU study, this                   (2) Title of the Form/Collection:
                                       million driver’s licenses and                           example results in an aggregate                       Employment Eligibility Verification.
                                       identification cards held by persons age                nationwide employee expense for                          (3) Agency form number, if any, and
                                       16 and over, while the U.S. population                  obtaining an acceptable document of                   the applicable component of the
                                       of people who are of driving age is 233                 $49,137,600.                                          Department of Homeland Security
                                       million. The issuance of 9 million more                   The cost associated with the                        sponsoring the collection: Form I–9.
                                       State-issued driver’s licenses and State-               information collection burden of the                  U.S. Citizenship and Immigration
                                       issued identification cards than the                    Form I–9 and its instructions is                      Services.
                                       driving age population suggests that a                  discussed below in the Paperwork                         (4) Affected public who will be asked
                                       very small portion of the working-age                   Reduction Act section of this rule.                   or required to respond, as well as a brief
                                       population would have neither a State-                                                                        abstract: Primary: Individuals or
                                       issued driver’s license nor a State-issued              F. Executive Order 13132
                                                                                                                                                     households. This form was developed to
                                       identification card. Therefore, it is likely              This rule would have no substantial                 facilitate compliance with section 274A
                                       that very few people will be required to                direct effects on the States, on the                  of the Immigration and Nationality Act,
                                       obtain a license in order to comply with                relationship between the National                     which prohibits the knowing
                                       the new requirements of this rule. On                   Government and the States, or on the                  employment of unauthorized aliens.
                                       the other hand, a sample of 2000                        distribution of power and                             The information collected is used by
                                       registered voters in three states                       responsibilities among the various                    employers or by recruiters for
                                       performed for a study being conducted                   levels of government. Therefore, this                 enforcement of provisions of
                                       by American University (AU) found that                  rule does not have sufficient federalism              immigration laws that are designed to
                                       roughly 1.2 percent of the people                       implications to warrant the preparation               control the employment of unauthorized
                                       surveyed did not have acceptable photo                  of a federalism summary impact                        aliens.
                                       identification cards for voting                         statement.                                               (5) An estimate of the total number of
                                       purposes.11 Assuming that the result                                                                          respondents and the amount of time
                                       from those three states would hold true                 G. Paperwork Reduction Act
                                                                                                                                                     estimated for an average respondent to
                                       nationwide, that percentage, while                         This interim rule requires a revision
                                                                                                                                                     respond: This figure was derived by
                                       small, is not trivial due to the annual                 to the Form I–9 (OMB Control Number
                                                                                                                                                     multiplying the number of respondents
                                       volume of new hires who must present                    1615–0047).
                                                                                                  Since this is an interim rule, this                (78,000,000) × frequency of response (1)
                                       Form I–9. If only 1.2 percent of the
                                                                                               information collection has been                       × hour per response (9 minutes or 0.15
                                       estimated 58 million annual new hires
                                                                                               submitted and approved by OMB for                     hours). The annual recordkeeping
                                       in the United States must obtain a new
                                                                                               180 days under the emergency review                   burden is added to the total annual
                                       document, 696,000 people are
                                                                                               and clearance procedures covered under                reporting burden that is based on
                                       affected.12 As stated above, states charge
                                                                                               the PRA. During the first 60 days, USCIS              20,000,000 record keepers at (3 minutes
                                         10 United States Department of Transportation,
                                                                                               is requesting comments on this                        or .05 hours) per filing.
                                       Federal Highway Administration, Highway                 information collection until February                    (6) An estimate of the total public
                                       Statistics 2006, Licensed drivers—Ratio of licensed                                                           burden (in hours) associated with the
                                       drivers to population. Available at http://             17, 2009. When submitting comments
                                                   on this information collection, your                  collection: 12,700,000 annual burden
                                       driver_licensing.htm.                                   comments should address one or more                   hours.
                                         11 Robert Pastor, et al., Voter IDs Are Not the
                                                                                               of the following four points:                            All comments and suggestions or
                                       Problem: A Survey of Three States, (Center for                                                                questions regarding additional
                                       Democracy and Election Management, American
                                                                                                  (1) Evaluate whether the collection of
                                       University, Washington, DC , Jan. 9, 2008). http://     information is necessary for the proper               information should be directed to the
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                                                       performance of the agency, including                  Department of Homeland Security, U.S.
                                       VoterIDFinalReport1-9-08.pdf.                           whether the information will have                     Citizenship and Immigration Services,
                                         12 U.S. Department of Labor, U.S. Bureau of Labor

                                       Statistics, Job Openings and Labor Turnover Survey
                                                                                               practical utility;                                    Chief, Regulatory Management Division,
                                       Available at                      (2) Evaluate the accuracy of the                   111 Massachusetts Avenue, NW., Suite
                                       outside.jsp?survey=jt.                                  agency’s estimate of the burden of the                3008, Washington, DC 20529.

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                                                    Federal Register / Vol. 73, No. 243 / Wednesday, December 17, 2008 / Rules and Regulations                                           76511

                                       List of Subjects in 8 CFR Part 274a                        (1) A United States passport;                         (vi) * * *
                                          Administrative practice and                             (2) An Alien Registration Receipt Card                (B) Form I–94 or I–94A indicating
                                       procedure, Aliens, Employment,                          or Permanent Resident Card (Form I–                   temporary evidence of permanent
                                       Penalties, Reporting and recordkeeping                  551);                                                 resident status. The individual indicates
                                       requirements.                                              (3) A foreign passport that contains a             in section 1 of the Form I–9 that he or
                                                                                               temporary I–551 stamp, or temporary I–                she is a lawful permanent resident and
                                       ■ Accordingly, part 274a of chapter I of
                                                                                               551 printed notation on a machine-                    the individual:
                                       title 8 of the Code of Federal
                                                                                               readable immigrant visa;
                                       Regulations is amended as follows:                                                                               (1) Presents the arrival portion of
                                                                                                  (4) An Employment Authorization
                                                                                               Document which contains a photograph                  Form I–94 or Form I–94A with an
                                       PART 274a—CONTROL OF
                                                                                               (Form I–766);                                         unexpired foreign passport containing
                                       EMPLOYMENT OF ALIENS
                                                                                                  (5) In the case of a nonimmigrant                  an unexpired ‘‘Temporary I–551’’ stamp
                                       ■ 1. The authority citation for part 274a               alien authorized to work for a specific               and a photograph of the individual,
                                       continues to read as follows:                           employer incident to status, a foreign                which is designated for purposes of this
                                         Authority: 8 U.S.C. 1101, 1103, 1324a; 8              passport with a Form I–94 or Form I–                  section as a receipt for Form I–551; and
                                       CFR part 2.                                             94A bearing the same name as the                         (2) Presents the Form I–551 by the
                                                                                               passport and containing an endorsement                expiration date of the ‘‘Temporary I–
                                       ■ 2. Section 274a.2 is amended by:
                                       ■ a. Revising the section heading;                      of the alien’s nonimmigrant status, as                551’’ stamp or, if the stamp or statement
                                       ■ b. Revising the term ‘‘eligibility’’ to               long as the period of endorsement has                 has no expiration date, within one year
                                       read ‘‘authorization’’ in the first                     not yet expired and the proposed                      from the issuance date of the arrival
                                       sentence of paragraphs (a)(3),                          employment is not in conflict with any                portion of the Form I–94 or Form I–94A;
                                       (b)(1)(i)(B), and (b)(1)(ii)(A);                        restrictions or limitations identified on             or
                                       ■ c. Revising paragraph (b)(1)(v)                       the Form;                                                (C) Form I–94 or I–94A indicating
                                       introductory text;                                         (6) A passport from the Federated
                                                                                                                                                     refugee status. The individual indicates
                                       ■ d. Revising paragraph (b)(1)(v)(A);                   States of Micronesia (FSM) or the
                                                                                                                                                     in section 1 of the Form I–9 that he or
                                       ■ e. Revising paragraphs (b)(1)(v)(C)(1),               Republic of the Marshall Islands (RMI)
                                                                                                                                                     she is an alien authorized to work and
                                       (2), (3), (6), (7), and (8); and by                     with Form I–94 or Form I–94A
                                                                                                                                                     the individual:
                                       ■ f. Revising paragraphs (b)(1)(vi)(B)                  indicating nonimmigrant admission
                                       and (C).                                                under the Compact of Free Association                    (1) Presents the departure portion of
                                         The revisions read as follows:                        Between the United States and the FSM                 Form I–94 or I–94A containing an
                                                                                               or RMI.                                               unexpired refugee admission stamp,
                                       § 274a.2 Verification of identity and                                                                         which is designated for purposes of this
                                       employment authorization.                               *      *     *     *     *
                                                                                                  (C) * * *                                          section as a receipt for the Form I–766,
                                       *     *     *      *    *                                                                                     or a social security account number card
                                         (b) * * *                                                (1) A Social Security account number
                                                                                               card other than one that specifies on the             that contains no employment
                                         (1) * * *                                                                                                   restrictions; and
                                         (v) The individual may present either                 face that the issuance of the card does
                                       an original document which establishes                  not authorize employment in the United                   (2) Presents, within 90 days of the
                                       both employment authorization and                       States;                                               hire or, in the case of reverification, the
                                       identity, or an original document which                    (2) Certification of Birth issued by the           date employment authorization expires,
                                       establishes employment authorization                    Department of State, Form FS–545;                     either an unexpired Form I–766, or a
                                       and a separate original document which                     (3) Certification of Report of Birth               social security account number card that
                                       establishes identity. Only unexpired                    issued by the Department of State, Form               contains no employment restrictions
                                       documents are acceptable. The                           DS–1350;                                              and a document described under
                                       identification number and expiration                    *      *     *     *     *                            paragraph (b)(1)(v)(B) of this section.
                                       date (if any) of all documents must be                     (6) United States Citizen                          *      *     *    *      *
                                       noted in the appropriate space provided                 Identification Card, Form I–197;
                                       on the Form I–9.                                           (7) Identification card for use of                 Paul A. Schneider,
                                         (A) The following documents, so long                  resident citizen in the United States,                Deputy Secretary.
                                       as they appear to relate to the individual              Form I–179;                                              Note: The Form I–9 included as an
                                       presenting the document, are acceptable                    (8) An employment authorization                    attachment to this document should not be
                                       to evidence both identity and                           document issued by the Department of                  codified in Title 8 of the Code of Federal
                                       employment authorization:                               Homeland Security.                                    Regulations.
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                                                    Federal Register / Vol. 73, No. 243 / Wednesday, December 17, 2008 / Rules and Regulations                                          76517

                                       [FR Doc. E8–29874 Filed 12–16–08; 8:45 am]              received, and thus this notice confirms               Subsequent to publication, the FAA
                                       BILLING CODE 9111–97–C                                  that effective date.                                  found that a minor correction to the
                                                                                               *     *     *     *   *                               radials defining the airspace was
                                                                                                                                                     needed. This action makes that
                                                                                                 Issued in College Park, Georgia, on
                                                                                               November 28, 2008.
                                                                                                                                                     correction. With the exception of
                                       DEPARTMENT OF TRANSPORTATION                                                                                  editorial changes, and the changes
                                                                                               Barry A. Knight,
                                                                                                                                                     described above, this rule is the same as
                                       Federal Aviation Administration                         Acting Manager, Operations Support Group,             that proposed in the NPRM. Class D
                                                                                               Eastern Service Center, Air Traffic
                                                                                                                                                     airspace designations are published in
                                       14 CFR Part 71                                                                                                paragraph 5000 of FAA Order 7400.9S
                                                                                               [FR Doc. E8–29814 Filed 12–16–08; 8:45 am]
                                                                                                                                                     signed October 3, 2008, and effective
                                                                                               BILLING CODE 4910–13–P
                                       [Docket No. FAA–2008–0836; Airspace                                                                           October 31, 2008, which is incorporated
                                       Docket No. 08–AEA–23]                                                                                         by reference in 14 CFR part 71.1. Class
                                                                                                                                                     E Surface Area airspace designations are
                                       Amendment of Class E Airspace;                          DEPARTMENT OF TRANSPORTATION
                                                                                                                                                     published in paragraph 6002 of FAA
                                       Butler, PA; Removal of Class E                                                                                Order 7400.9S signed October 3, 2008,
                                                                                               Federal Aviation Administration
                                       Airspace; East Butler, PA                                                                                     and effective October 31, 2008, which is
                                                                                               14 CFR Part 71                                        incorporated by reference in 14 CFR
                                       AGENCY: Federal Aviation
                                                                                                                                                     part 71.1. The Class D airspace and
                                       Administration (FAA), DOT.                              [Docket No. FAA–2008–0960; Airspace                   Class E airspace designations listed in
                                       ACTION: Final rule; confirmation of                     Docket No. 08–ASW–17]                                 this document will be published
                                       effective date.                                                                                               subsequently in that Order.
                                                                                               Establishment of Class D and Class E
                                       SUMMARY:   This action confirms the                     Airspace; Conroe, TX                                  The Rule
                                       effective date of a direct final rule                                                                            This action amends Title 14 Code of
                                                                                               AGENCY: Federal Aviation
                                       published in the Federal Register (73                                                                         Federal Regulations (14 CFR) part 71 by
                                                                                               Administration (FAA), DOT.
                                       FR 56470) that amends Class E Airspace                                                                        establishing Class D airspace and Class
                                                                                               ACTION: Final rule.
                                       at Butler, PA to merge the existing Class                                                                     E Surface Area airspace extending
                                       E Airspace listed under East Butler, PA,                SUMMARY: This action establishes Class                upward from the surface to and
                                       and corrects a technical error to the                   D airspace and Class E airspace at Lone               including 2,700 feet MSL within a 4.1-
                                       airport name by correctly listing the                   Star Executive Airport, Conroe, TX.                   mile radius of Lone Star Executive
                                       Butler County Airport as Butler Co./K W                 Establishment of an air traffic control               Airport, excluding that airspace within
                                       Scholter Field Airport.                                 tower at Lone Star Executive Airport has              the 4.1-mile radius north and east of the
                                       DATES: Effective 0901 UTC, January 15,                  made this action necessary for the safety             intersection of the IAH 357° radial and
                                       2009. The Director of the Federal                       of Instrument Flight Rule (IFR)                       the TNV 083° radial.
                                       Register approves this incorporation by                 operations at the airport. Class D                       The FAA has determined that this
                                       reference action under title 1, Code of                 airspace will revert to a Class E Surface             regulation only involves an established
                                       Federal Regulations, part 51, subject to                Area during periods when the control                  body of technical regulations for which
                                       the annual revision of FAA Order                        tower is not operating. This action also              frequent and routine amendments are
                                       7400.9 and publication of conforming                    corrects the radials used to define the               necessary to keep them operationally
                                       amendments.                                             airspace.                                             current. Therefore, this regulation: (1) Is
                                                                                                                                                     not a ‘‘significant regulatory action’’
                                       FOR FURTHER INFORMATION CONTACT:                        DATES: Effective Date: 0901 UTC, March
                                                                                                                                                     under Executive Order 12866; (2) is not
                                       Melinda Giddens, Operations Support                     12, 2009. The Director of the Federal                 a ‘‘significant rule’’ under DOT
                                       Group, Eastern Service Center, Federal                  Register approves this incorporation by               Regulatory Policies and Procedures (44
                                       Aviation Administration, P.O. Box                       reference action under 1 CFR part 51,                 FR 11034; February 26, 1979); and (3)
                                       20636, Atlanta, Georgia 30320;                          subject to the annual revision of FAA                 does not warrant preparation of a
                                       telephone (404) 305–5610.                               Order 7400.9 and publication of                       regulatory evaluation as the anticipated
                                       SUPPLEMENTARY INFORMATION:                              conforming amendments.                                impact is so minimal. Since this is a
                                                                                               FOR FURTHER INFORMATION CONTACT:                      routine matter that will only affect air
                                       Confirmation of Effective Date                          Scott Enander, Central Service Center,                traffic procedures and air navigation, it
                                         The FAA published this direct final                   Operations Support Group, Federal                     is certified that this rule, when
                                       rule with a request for comments in the                 Aviation Administration, Southwest                    promulgated, will not have a significant
                                       Federal Register on September 29, 2008                  Region, 2601 Meacham Blvd., Ft. Worth,                economic impact on a substantial
                                       (73 FR 56470), Docket No. FAA–2008–                     TX 76193–0530; telephone (817) 222–                   number of small entities under the
                                       0836; Airspace Docket No. 08–AEA–23.                    5582.                                                 criteria of the Regulatory Flexibility Act.
                                       The FAA uses the direct final                           SUPPLEMENTARY INFORMATION:                               The FAA’s authority to issue rules
                                       rulemaking procedure for a non-                                                                               regarding aviation safety is found in
                                       controversial rule where the FAA                        History                                               Title 49 of the U.S. Code. Subtitle I,
                                       believes there will be no adverse public                  On October 7, 2008, the FAA                         Section 106, describes the authority of
                                       comment. This direct final rule advised                 published in the Federal Register a                   the FAA Administrator. Subtitle VII,
                                       the public that no adverse comments                     notice of proposed rulemaking to                      Aviation Programs, describes in more
                                       were anticipated, and that unless a                     establish Class D airspace and Class E                detail the scope of the agency’s
                                       written adverse comment, or a written                   airspace at Conroe, TX (73 FR 58512,                  authority. This rulemaking is
pwalker on PROD1PC71 with RULES

                                       notice of intent to submit such an                      Docket No. FAA–2008–0960). Interested                 promulgated under the authority
                                       adverse comment, were received within                   parties were invited to participate in                described in Subtitle VII, Part A,
                                       the comment period, the regulation                      this rulemaking effort by submitting                  Subpart I, Section 40103. Under that
                                       would become effective on January 15,                   written comments on the proposal to the               section, the FAA is charged with
                                       2009. No adverse comments were                          FAA. No comments were received.                       prescribing regulations to assign the use

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