Rule2023-16656
Immigration Bond Notifications
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 8, 2023
Effective
September 7, 2023
Issuing agencies
Homeland Security Department
Abstract
DHS is revising its regulations governing service of bond notifications. Current regulations authorize ICE to serve documents in- person, or by certified, registered, or first-class (regular) mail. This IFR authorizes ICE to electronically serve bond-related notifications to obligors for immigration bonds. The ICE transition to electronic notifications for bond-related documents is part of an electronic bonds system ICE developed to simplify the posting of bonds.
Full Text
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<title>Federal Register, Volume 88 Issue 151 (Tuesday, August 8, 2023)</title>
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[Federal Register Volume 88, Number 151 (Tuesday, August 8, 2023)]
[Rules and Regulations]
[Pages 53358-53371]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16656]
[[Page 53358]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 103
[DHS Docket No. ICEB-2021-0015]
RIN 1653-AA85
Immigration Bond Notifications
AGENCY: U.S. Immigration and Customs Enforcement (ICE), Department of
Homeland Security (DHS).
ACTION: Interim final rule (IFR); request for comment.
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SUMMARY: DHS is revising its regulations governing service of bond
notifications. Current regulations authorize ICE to serve documents in-
person, or by certified, registered, or first-class (regular) mail.
This IFR authorizes ICE to electronically serve bond-related
notifications to obligors for immigration bonds. The ICE transition to
electronic notifications for bond-related documents is part of an
electronic bonds system ICE developed to simplify the posting of bonds.
DATES: This rule is effective as of September 7, 2023; comments must be
received by September 7, 2023.
ADDRESSES: You may submit comments on this IFR, identified by DHS
Docket No. ICEB-2021-0015, through the Federal eRulemaking Portal at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the website instructions to submit
comments.
Comments submitted in a manner other than the one listed here,
including emails or letters sent to DHS officials, will not be
considered comments on the IFR and may not receive a response from DHS.
Please note that DHS cannot accept any comments that are mailed, hand
delivered, or couriered. In addition, DHS cannot accept mailed comments
contained on any form of digital media storage devices, such as CDs/
DVDs and USB drives. If you cannot submit your material using <a href="https://www.regulations.gov">https://www.regulations.gov</a>, contact the person in the FOR FURTHER INFORMATION
CONTACT section of this document for alternate instructions.
FOR FURTHER INFORMATION CONTACT: Sharon Hageman, Deputy Assistant
Director, Office of Regulatory Affairs and Policy, U.S. Immigration and
Customs Enforcement, Department of Homeland Security, 500 12th Street
SW, Mail Stop 5006, Washington, DC 20536. Telephone 202-732-6960 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
I. Public Participation
DHS encourages all interested parties to participate in this
rulemaking by submitting written data, views, comments and arguments on
all aspects of this IFR. Comments providing the most assistance to DHS
will reference a specific portion of the IFR, explain the reason for
any recommended change, and include the data, information, or authority
that supports the recommended change. Under the guidelines of the
Office of the Federal Register, all comments received will be posted to
<a href="https://www.regulations.gov">https://www.regulations.gov</a> as part of the public record and will
include any personal information you have provided. See the ADDRESSES
section for information on how to submit comments.
A. Submitting Comments
To submit your comments online, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>
and insert ``ICEB-2021-0015'' in the ``Search'' box. Click on the
``Comment'' box and type your comments in the text box provided. When
you are satisfied with your comments, follow the prompts, and then
click ``Submit Comment.''
DHS will post comments to the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to DHS.
DHS may withhold information provided in comments from public viewing
that it determines is offensive. For additional information, please
read the ``Privacy & Security Notice,'' via the link in the footer of
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. DHS will consider all comments and
materials received during the comment period and may change this rule
based on your comments.
B. Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and
insert ``ICEB-2021-0015'' in the ``Search'' box. Next, click on
``Dockets,'' then on the name of the rule, and finally on ``Browse All
Comments.'' Individuals without internet access can make alternate
arrangements for viewing comments and documents related to this
rulemaking by contacting the individual listed in the FOR FURTHER
INFORMATION CONTACT section above. You may also sign up for email
alerts on the online docket to be notified when comments are posted, or
a final rule is published.
C. Privacy Act
You may consider limiting the amount of personal information that
you provide in your voluntary public comment submission because anyone
can electronically search comments received in any of DHS's dockets by
the name of the individual submitting the comment (or signing the
comment, if submitted on behalf of an association, business, labor
union, etc.). For additional information, please read the Privacy and
Security Notice posted on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
II. Abbreviations
BIA Board of Immigration Appeals
CBP U.S. Customs and Border Protection
CeBONDS Cash Electronic Bonds Online System
CFR Code of Federal Regulations
COVID-19 Coronavirus Disease 2019
DHS Department of Homeland Security
eBONDS Electronic Bonds Online System
e-signature Electronic Signature
ERO Enforcement and Removal Operations
FY Fiscal Year
GPEA Government Paperwork Elimination Act
ICE U.S. Immigration and Customs Enforcement
INA Immigration and Nationality Act
NARA National Archives and Records Administration
OMB Office of Management and Budget
USCIS U.S. Citizenship and Immigration Services
III. Background and Purpose
A. Legal Authority
The Homeland Security Act of 2002, Public Law 107-296, section 102,
116 Stat. 2135 (Nov. 25, 2002), 6 U.S.C. 112, and the Immigration and
Nationality Act of 1952 (INA), as amended, section 103(a)(1), 8 U.S.C.
1103(a)(1), charge the Secretary of the Department of Homeland Security
(DHS) (the Secretary) with administration and enforcement of the
immigration and naturalization laws. The Secretary promulgates this
interim final rule (IFR) under the broad authority to administer DHS,
and the authorities provided under the Homeland Security Act of 2002,
the immigration and nationality laws, and other delegated authority.
Over the past twenty years, Congress and the Executive Branch have
promoted the use of electronic transactions and electronic records when
feasible instead of relying solely upon in-person or paper
transactions. Under the Government Paperwork Elimination Act (GPEA),
Public Law 105-277, tit. XVII, section 1703, 112 Stat. 2681, 2681-749
(Oct. 21, 1998), 44
[[Page 53359]]
U.S.C. 3504 note, Federal agencies are required, when practicable, to
provide the option of electronic maintenance, submission, or disclosure
of information as a substitute for paper transactions. More recently,
on June 28, 2019, the Office of Management and Budget (OMB) and the
National Archives and Records Administration (NARA) jointly issued a
memorandum that encouraged agencies to consider cost-effective
opportunities to transition related business processes to an electronic
environment.\1\ Offering electronic processes in place of paper or in-
person transactions has the benefits of making it ``easier for the
public to connect with the Federal Government, and apply for and
receive services, improving customer satisfaction. Electronic records .
. . reduce processing times and decrease the probability of lost or
missing information . . . [and] . . . greatly improve agencies' ability
to provide public access to Federal records, promoting transparency and
accountability.'' Executive Office of the President, Delivering
Government Solutions in the 21st Century: Reform Plan and
Reorganization Recommendations, at 100 (June 2018). The GPEA
establishes the means for the use and acceptance of electronic
signatures (e-signatures). This rule will significantly enhance the
ability of U.S. Immigration and Customs Enforcement (ICE) to fully
implement the GPEA.
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\1\ Transition to Electronic Records (OMB/NARA M-19-21),
available at <a href="https://www.archives.gov/files/records-mgmt/policy/m-19-21-transition-to-federal-records.pdf">https://www.archives.gov/files/records-mgmt/policy/m-19-21-transition-to-federal-records.pdf</a>.
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The Electronic Signatures in Global and National Commerce Act (E-
SIGN Act), 15 U.S.C. 7001-7031, effective for most purposes on October
1, 2000, allows electronic records and signatures to be given the same
effect as paper and ink documents. See 15 U.S.C. 7001(a). The E-SIGN
Act provides ``legal parity'' for electronic records with paper
records, when the procedures an agency adopts for the creation,
maintenance, and retention of electronic records comply with the
Federal Records Act and NARA guidelines governing digitization of
records.\2\ Except for records maintained by government agencies (other
than contracts to which it is a party), the E-SIGN Act does not require
any person to agree to use or accept electronic records. Id. sec.
7001(b)(2); see also 12 CFR 609.910(a) (noting that under the E-SIGN
Act, ``E-commerce is optional; all parties to a legally valid
transaction must agree to the electronic use before it can be used'').
ICE intends to comply with this requirement by obtaining consent from
immigration bond sureties and obligors to send electronic
notifications.
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\2\ Robert A. Wittie & Jane K. Winn, Electronic Records and
Signatures under the Federal E-Sign Legislation and the UETA, 56
Bus. Law. 293, 314 (2000).
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The Secretary is charged with the administration and enforcement of
laws relating to the immigration and naturalization of noncitizens and
``shall [. . .] prescribe such forms of bond'' as deemed necessary for
carrying out the authority under the INA. See INA 103(a)(1), (3), 8
U.S.C. 1103(a)(1), (3). Additionally, where a noncitizen is arrested
and detained pending a decision on removal from the United States, the
Secretary is authorized to ``release [a noncitizen] on . . . (A) bond
of at least $1,500 with security approved by, and containing conditions
prescribed by [the Secretary of Homeland Security]. See INA 236(a)(2),
8 U.S.C. 1226(a)(2). Further, the Secretary ``at any time may revoke a
bond'' authorized under INA 236(a)(2), re-arrest the noncitizen, and
detain them. See INA 236(b), 8 U.S.C. 1226(b). Under the terms and
conditions of DHS's Immigration Bond, Form I-352, ``Federal law shall
apply to the interpretation of the bond.'' Immigration Bond, ICE Form
I-352, at 1 (rev. 11/20). ICE approves several types of immigration
bonds such as delivery bonds, 8 CFR 236.1(c)(10), voluntary departure
bonds, 8 CFR 240.25(b), 8 CFR 1240.26(b)(3)(i), (c)(3)(i), and order of
supervision bonds, 8 CFR 241.5(b).
With respect to cash bonds, the Secretary delegated to the ICE
Director the authority to ``issue and execute detainers and warrants of
arrest or removal, detain aliens, release aliens on bond and other
appropriate conditions as provided by law . . .'' \3\ With respect to
surety bonds, the Secretary delegated to the ICE Director the
``[a]uthority to approve surety bonds \[4]\ issued pursuant to the
immigration laws, to determine whether such surety bonds have been
breached, and to take appropriate action to protect the interests of
the United States with respect to such surety bonds.'' \5\
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\3\ DHS Delegation No. 7030.2, Delegation of Authority to the
Assistant Secretary for U.S. Immigration and Customs Enforcement, ]
2(T) (Nov. 13, 2004) (effective Mar.1, 2003). See <a href="https://dhsconnect.dhs.gov/org/comp/mgmt/policies/Delegations/07030.2.pdf">https://dhsconnect.dhs.gov/org/comp/mgmt/policies/Delegations/07030.2.pdf</a>.
\4\ In this context, ``surety bonds'' is used in the same manner
as it is used in 8 CFR 103.6(b)(1) to include immigration bonds
underwritten by a surety company or posted by an entity or
individual who deposits cash equal to the face amount of the bond as
security for performance.
\5\ DHS Delegation No. 7030.2, ] 2(U).
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B. Background
ICE's mission is to protect America from cross-border crime and
illegal immigration that threaten national security and public
safety.\6\ ICE secures the Nation's borders by enforcing more than 400
Federal statutes and issuing a wide range of notices, decisions, and
other documents to entities such as, but not limited to, universities,
businesses, courts, and noncitizens.\7\ Generally, DHS regulations
authorize ICE to serve notices, decisions, and other documents in
person or through the U.S. Postal Service. DHS regulations distinguish
between ``personal'' and ``routine'' service of notices, decisions, and
other documents. See 8 CFR 103.8.
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\6\ See <a href="https://www.ice.gov/mission">https://www.ice.gov/mission</a> (last visited Jun 30, 2022).
\7\ The preamble of this IFR uses ``noncitizen'' as equivalent
to the statutory term ``alien.'' See Barton v. Barr, 140 S. Ct.
1442, 1446 n.2 (2020) (quoting 8 U.S.C. 1101(a)(3)).
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Personal service is required in any proceeding initiated by DHS
that has a proposed adverse effect on the recipient, if the recipient
is confined to a penal or mental institution, or if the recipient is a
minor under the age of 14 or mentally incompetent. See 8 CFR
103.8(c)(1) and (2). Current regulations define personal service \8\ as
personal delivery; delivery at a person's home or usual residence by
leaving a copy with a person of suitable age and discretion; delivery
at an attorney's or corporate office by leaving a copy with a person in
charge; mailing a copy by certified or registered mail, return receipt
requested, addressed to a person at his or her last known address; or
notifying the party by electronic mail and posting the decision to the
party's account with U.S. Citizenship and Immigration Services (USCIS)
if so requested by the party. See 8 CFR 103.8(a)(2).
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\8\ Cf. 8 CFR 103.8(a)(3) (providing additional methods for
``personal service involving notices of intention to fine.'').
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Routine service is not required by regulations but may be used when
personal service is not required. Routine service includes mailing a
notice by `ordinary' mail (first-class mail) addressed to the affected
party or the party's attorney/representative at his or her last known
address or notifying the party by electronic mail and posting the
decision to the party's USCIS account if so requested by the party. See
8 CFR 103.8(a)(1); See also 8 CFR part 292 (Representation and
Appearances) and 8 CFR part 1292 (Representation and Appearances).\9\
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\9\ Subject to the limitations in 8 CFR 103.2(a)(3).
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[[Page 53360]]
C. Immigration Bonds
An immigration bond is a formal written guarantee by an obligor (an
individual, entity, or surety company) posted as security for the
amount noted on the face of the immigration bond. The bond assures ICE
that the obligor will perform the obligations for the type of bond
indicated on the Immigration Bond, Form I-352. The posting of
immigration bonds can occur with the deposit of cash in the full
principal amount of the bond, known as ``cash bonds;'' \10\ or where a
surety company and its agent agree to pay the amount of the bond if
there is a substantial violation of the bond's terms and conditions,
known as a ``surety bond.'' Out of a total 33,237 approved immigration
bonds that ICE issued in 2020,\11\ 25,751 (78 percent) were cash bonds
and 7,486 (22 percent) were surety bonds. If the obligor performs the
conditions set forth in the bond, the bond will be cancelled. If the
obligor substantially violates the conditions of the bond, the bond
will be considered breached (a breached bond). See 8 CFR 103.6(e).
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\10\ An immigration bond secured by a cash deposit posted by an
individual, law firm, non-profit organization, or other entity.
\11\ Immigration Bond Statistics maintained by ICE's Bonds
Branch, Financial Service Center-Burlington. Accessed 7/19/2022.
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An immigration bond may be posted by a surety company or a cash
bond obligor (provided that the bond is approved by ICE). Surety bonds
are bonds underwritten by a surety company certified to issue bonds on
behalf of the Federal Government. See generally 8 CFR 103.6(b)
(identifying the parties that may serve as sureties on immigration
bonds). Under the terms of the bond contract, the surety is the
obligor, the co-obligor is the agent that posts a bond on behalf of a
surety, the noncitizen (on whose behalf the bond is issued) is the
principal, and ICE is the beneficiary of all bonds it authorizes. An
acceptable surety is either a company that appears on the current
Department of the Treasury (Treasury) Circular 570 as a company holding
a certificate of authority to underwrite Federal bonds pursuant to 31
U.S.C. 9304-9308 or is an entity or individual who deposits the amount
of the bond with ICE. See 8 CFR 103.6(b)(1). The surety (obligor) and
its agent (co-obligor) guarantee the performance and fulfillment of the
noncitizen's duties as set forth in the bond form. See Form I-352, at 1
(rev. 11/20).
ICE approves and issues three different types of bonds.
<bullet> Delivery Bonds: To release a noncitizen from DHS custody
while removal proceedings are pending.
<bullet> Voluntary Departure Bonds: To ensure a noncitizen who is
granted voluntary departure leaves the United States on or before the
voluntary departure date set by an Immigration Judge or the Board of
Immigration Appeals (BIA).
<bullet> Order of Supervision Bonds: To ensure noncitizens released
on an order of supervision comply with the material terms of the
supervised release.
Out of the 33,237 immigration bonds that ICE issued in 2020,\12\ 93
percent were delivery bonds, six percent were voluntary departure
bonds, and fewer than one percent were order of supervision bonds.\13\
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\12\ Id.
\13\ Ibid.
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To trigger an obligor's performance, ICE issues a demand notice on
Form I-340, Notice To Obligor To Deliver Alien. DHS regulations
authorize ICE to use personal service as defined by 8 CFR 103.8 to
deliver demand notices issued on delivery bonds so ICE can confirm
receipt (the date the obligor receives the demand notice). ICE confirms
receipt of demand notices (proof of service) issued on delivery bonds
to confirm that timely notice was provided to an obligor of their duty
to surrender a noncitizen at an ICE office on the designated date. For
breach notices,\14\ cancellation notices, and notices of bond breach
reconsideration decisions, DHS regulations authorize ICE to use routine
mail service using first-class mail to the obligor's last known
address. See 8 CFR 103.8(a)(1). ICE uses routine mail service as well
to issue invoices and demand letters to surety companies and their
agents, either by regular mail or a mail method that allows ICE to
track and confirm delivery, or by email (electronically) with the co-
obligors' consent.
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\14\ Immigration bonds are contracts subject to a regulatory
scheme with the result that ICE bond breach determinations are
reviewed by a court under the arbitrary and capricious standard of
review set forth in the Administrative Procedure Act (APA), 5 U.S.C.
706(2)(A). United States v. Gonzales & Gonzales Bonds & Ins. Agency,
Inc., 728 F. Supp. 2d 1077, 1087-92 (N.D. Cal. 2010); Safety Nat'l
Cas. Corp. v. DHS, 711 F. Supp. 2d 697, 701 & 708-09 (S.D. Tex.
2008), rev'd in part on other grounds, AAA Bonding Agency Inc. v.
DHS, 447 F. App'x 603 (5th Cir. 2011); United States v. Minnesota
Trust Co., 59 F.3d 87, 90 (8th Cir. 1995).
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After an immigration bond is issued, depending on the type of, and
action needed on the, bond, ICE may issue the following notification(s)
to the bond obligor.
1. Delivery Demand. Form I-340, Notice to Obligor to Deliver Alien,
instructs the bond obligor to surrender the noncitizen to an ICE Office
or to an immigration court on a designated date.
2. Breach Notice. Form I-323, Notice--Immigration Bond Breached,
informs the obligor that a condition of the bond was substantially
violated, notating the date the bond was breached, and apprises the
obligor of the right to file an administrative appeal of the breach
determination.\15\
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\15\ 8 CFR 103.6(e); ICE Form I-323 (rev. Oct. 2020).
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3. Cancellation Notice. Form I-391, Notice--Immigration Bond
Cancelled, informs the obligor that substantial compliance with the
conditions of the bond was performed and that, for cash bonds, the
deposit will be refunded.\16\
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\16\ ICE Form I-391 (rev. Oct. 2020).
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4. Bond Breach Reconsideration. Form 71-042, Notice of Bond Breach
Reconsideration Decision, rescinds a bond breach issued in error and
informs the obligor either that the bond has been reinstated or
cancelled.\17\
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\17\ ICE Form 71-042 (rev. Jan. 2013).
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For surety bonds that have been breached, ICE issues an invoice
with information about the government's collection processes to satisfy
the requirement to notify the co-obligors of the demand for payment
under 31 CFR 901.2. ICE may issue a demand letter to the co-obligors
summarizing the facts supporting the breach determination and attaching
documents that support the determination that a debt is owed.
D. Need for Changes
DHS is amending its regulations to permit ICE to transition to a
more modern, secure, and electronic environment. Initially, ICE's
Enforcement and Removal Operations (ERO) Bond Management Unit will
utilize electronic service in the immigration bonds context.
Specifically, this IFR permits ICE to issue bond-related notifications
to obligors electronically when enrolling in ICE's electronic bond
systems: (1) Electronic Bonds Online System (eBONDS) and (2) Cash
Electronic Bonds Online System (CeBONDS). This capability will improve
security and transparency in the bond process and facilitate quicker
information and communication to both the public and the government
with minimal burden. ICE ERO is currently developing CeBONDS, a system
that allows obligors to conveniently post ICE immigration cash bonds
online without visiting an ICE office in-person.
ICE's CeBONDS system will permit the general public to post and pay
bonds online. However, due to current regulations, ICE only permits
[[Page 53361]]
individuals to post bonds online, but ICE is not permitted to serve
notices, decisions, or other documents electronically. See 8 CFR
103.8(a)(1) and (2). ICE is seeking this regulatory change to create
efficiencies and avoid lags in bond processing that may occur when
allowing the general public to post and pay bonds electronically but
where ICE then must serve a paper notice, decision, or other document
through paper-based service. See current 8 CFR 103.8(a)(1) and (2).
Regulatory changes in this rule will permit ICE to conduct an entirely
electronic transaction with obligors posting bonds online, instead of
permitting obligors to post bonds online but serving bond-related
notices via regular or certified mail. Without this rule, eBONDS and
CeBONDS notifications cannot be served electronically once that system
development is completed because the rule is needed to authorize
electronic notifications.
In 2010, ICE deployed the Electronic Bonds Online System (eBONDS),
a web-based system designed to automate the issuance of ICE immigration
bonds underwritten by surety companies and their agents.\18\ Prior to
the deployment of eBONDS, a surety agent was required to visit an ERO
field office in person. First, a surety agent would request that an ERO
field officer verify a noncitizen was eligible for bond, and then
complete and submit the hard copy Form I-352 bond documentation package
in order to post bond. Once the ERO officer reviewed and approved the
package, ERO would create a financial record of the bond in the
appropriate ICE system and ICE would release the noncitizen. If the
noncitizen did not satisfy the terms of the bond (e.g., failed to
appear at an ICE office in response to a demand notice), the bond was
considered breached, and the surety company was required to pay the
bond amount to the U.S. Government.
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\18\ eBONDS may only be used for surety bonds. However, of the
33,237 approved immigration bonds that ICE issued in 2020, only
7,486 were surety bonds. See Immigration Bond Statistics maintained
by ICE's Bonds Branch, Financial Service Center-Burlington.
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The eBONDS system streamlined the processing and issuing of surety
bonds and allowed a surety company and its agent to initiate and
process an immigration bond online rather than appearing in person at
an ICE office to request a bond be issued and approved. The eBONDS
system enabled ICE offices to prepare and issue demand, breach, and
cancellation notices directly to surety companies and their agents
electronically. However, due to current regulations, eBONDS could not
be fully implemented, in that ICE cannot electronically serve the bond-
related notifications it generates unless the surety company agrees
otherwise. See 8 CFR 103.6 and 8 CFR 103.8(a)(1) and (2). Instead,
eBONDS automatically generates bond-related notifications that ICE
personnel must print on paper and serve via certified or regular
mail.\19\
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\19\ eBONDS was built to provide bond-related notices
electronically, but current regulation does not recognize that form
of service. As such, that functionality was never enabled. eBONDS
has a secure process set up for electronic service. Because bond-
related notices contain sensitive information, a notice is
transmitted to the surety companies and their agents in a two-step
process. First, the eBONDS system generates an email to the surety
and/or agent informing them that a notice was issued. Second, to
actually view the notice, the surety or agent must log in to eBONDS
and review the notice. eBONDS tracks and records when the notice is
opened, thereby permitting ICE to verify receipt of the notice.
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ICE is currently developing the CeBONDS system to allow cash bonds
to be posted online. CeBONDS will incorporate the functionality of
eBONDS to allow ICE to issue and serve all bond notices electronically
to any cash bond obligor who registers with the CeBONDS system. This
alternative method for issuing and serving cash bond notices will
increase security, efficiency, and accessibility for both obligors and
ICE. As stated above, no regulatory changes are needed to allow cash
bond obligors to post bonds online. However, current regulations do not
permit ICE to serve notifications electronically as they limit the
available methods of service to those listed in 8 CFR 103.8(a)(1) and
(2) (routine service and personal service). Without this rule, ICE
cannot send electronic bond notifications using CeBONDS and eBONDS.
ICE currently prepares and serves paper bond notices for sureties
and their agents who post bonds electronically in eBONDS but ICE
prefers to shift to an entirely electronic process with the release of
CeBONDS. Of the 33,237 approved immigration bonds that ICE issued in
2020, 25,751 were cash bonds.\20\ Expanding the hybrid electronic-paper
process from eBONDS to a larger number of cash bonds posted by
individuals, would be unduly burdensome to ICE as well as unnecessarily
delay receipt of bond-related notices to individuals posting cash
bonds. ICE does not believe it is reasonable to have an electronic
transaction delayed or disrupted by requiring a paper document to be
served via regular or certified mail when more efficient and cost-
effective methods are available.
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\20\ See Immigration Bond Statistics maintained by ICE's Bonds
Branch, Financial Service Center-Burlington.
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IV. Discussion of Changes
The definition of means of ``service'' in 8 CFR part 103 will be
amended to provide flexibility and promote the Federal Government's
goal of building better digital service transformation.\21\ The
regulations in chapter I of title 8 of the CFR contain provisions that,
to varying degrees, govern facets of the immigration-related components
of DHS, including but not limited to U.S. Customs and Border Protection
(CBP), ICE, and USCIS. Because ``the Service'' in 8 CFR may refer to
any immigration-related component of DHS, including CBP, ICE, and/or
USCIS, DHS is adding provisions to 8 CFR 103.6 to serve bond-related
notices electronically when consenting, enrolling, and using an ICE
electronic bonds systems.
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\21\ U.S. General Services Administration, Guidance on building
better digital services in government, <a href="https://digital.gov/">https://digital.gov/</a> (last
visited July 5, 2022).
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DHS is adding two paragraphs to Sec. 103.6, Immigration bonds, to
specifically authorize ICE to send all bond-related notifications
electronically to cash bond obligors and surety companies and their
agents who post an immigration bond using the eBONDS or CeBONDS.
Because an obligor must login to eBONDS or CeBONDS with a unique
password, an electronic record from the ICE bonds system indicating
that the obligor opened a particular notification will serve as valid
proof of receipt service of the notice.
Proof of service functions as a receipt confirming the delivery of
documents from one party to another. ICE will verify that the email
provided by the noncitizen or the person authorized to accept service
on behalf of the noncitizen is valid users cannot create an online
account if their email is not validated. ICE will generally perform a
validity check as part of the sign-up process for receiving electronic
bond-related notices which is common practice with establishing online
accounts and notifications.\22\ ICE will retain that confirmation of
consent in order to document the noncitizen's consent. For bond-related
notifications,\23\ when the obligor receives an email that a bond-
related notification has been issued, the obligor must login with a
unique password to CeBONDS or eBONDS to view the notice. In amended
Sec. 103.6, ICE will
[[Page 53362]]
consider proof of service to be sufficient when ICE is able to verify
that the document was opened in eBONDS or CeBONDS. Electronic bond-
related notifications will serve as a valid form of notice that are
reasonably calculated to inform an individual, surety company, or agent
of the requirement to take some action.\24\
---------------------------------------------------------------------------
\22\ ICE will use another method of notification in the event
that the validity checks fails.
\23\ Currently, bond-related notices are automatically generated
from an electronic transaction.
\24\ Rule 4(f)(3) of the Federal Rules of Civil Procedure allows
service of process by email under certain circumstances.
---------------------------------------------------------------------------
V. Implementation of Electronic Notices
A. eBONDS and CeBONDS
ICE's eBONDS system allows surety companies or their agents to
initiate and process immigration bonds online rather than appear in
person at an ICE office to request a bond be issued and approved.
eBONDS also enables ICE to generate electronic bond-related
notifications to surety companies and their agents, although those
notifications cannot be served electronically under current
regulations. See 8 CFR 103.8(a)(1) and (2). The surety companies and
their agents can open an online account in eBONDS to view, print, or
save any documents or notifications associated with a bond at any time.
Surety companies and their agents who post bonds electronically enter
into a contract with ICE called an ``eBONDS Access Application and
Agreement.'' This contract grants the co-obligors access to eBONDS if
the surety company and their agents agree to the terms and conditions
of use. Once an obligor chooses to post a bond electronically with ICE,
the obligor agrees to accept and receive bond notifications and notices
electronically and agrees that opening a notice in eBONDS will
constitute as proof of service that that notice was received.
ICE's CeBONDS system will use the same processes and procedures for
cash bonds. Within CeBONDS the cash bond obligor is responsible for
ensuring that the email address provided is current and that email
settings (such as spam and other filters) will allow ICE electronic
bond-related notifications to be received. It is the responsibility of
the cash bond obligor to ensure that electronic bond-related
notifications can be received.
When developed and fully implemented, CeBONDS will notify the cash
bond obligor by generating an email notification that a document is in
their account so the obligor can log into the system to view the
``queue'' organized by a unique identifier for each bond (coinciding
with each notification issued). To view the bond-related notification,
the cash bond obligor clicks on an attachment. Obligors will be able to
view, download, and print the bond form and any bond-related
notification issued by ICE. Similar to eBONDS, CeBONDS will
electronically record the date and time the obligor opened the
document, so ICE has proof of receipt of the electronic bond-related
notification.
B. Electronic Immigration Bonds System Safeguards
ICE built safeguards into eBONDS and CeBONDS to ensure both surety
companies and individuals posting bonds actually receive their
electronic bond-related notifications. The systems will confirm that
obligors and surety companies (or their agents) that post bonds
electronically have the ability to send and receive emails and are
aware that bond-related notifications will be sent by email.
For surety companies, their agents, and cash bond obligors posting
multiple bonds, ICE will allow the obligors to post a new bond when all
notifications are opened within seven calendar days of being sent.
eBONDS tracks, and when fully developed in the future CeBONDS will
track, ``unopened'' notifications. Obligors who are not in compliance
with this requirement will be placed in a ``deficient electronic
recipient'' category and be prevented from posting new bonds in the
electronic systems. This safeguard ensures that bond obligors open
electronically served bond-related notifications in a timely fashion
and are aware of any significant actions taken on the bond. For
obligors in the ``deficient electronic recipient'' category, ICE will
reissue bond-related demand notifications by mailing them using a
tracking method, such as certified or registered mail with a return
receipt requested and will reissue all other bond-related notifications
by first-class mail to the obligor's last known address. ICE's eBONDS
and CeBONDS systems default to electronic service of bond-related
notifications, but if there is a problem with that electronic service
ICE reverts to another permitted form of paper-based service. Once the
system shows that the obligor complies with opening all electronic
bond-related notifications within seven calendar days of being sent,
the obligor may once again post new bonds electronically in eBONDS and
CeBONDS.
An important goal of this IFR is to reduce situations where surety
and cash bond notifications are sent by certified, registered, or
regular mail but are not delivered to obligors who have moved after
posting the bond. By authorizing electronic service, bond-related
notifications are received quicker, electronic service can be verified
in moments, and the number of bond-related notifications that are
returned as undeliverable will be reduced. While these are all
efficiencies gained for ICE, they are also benefits for surety
companies, agents, and for individuals posting cash bonds for
noncitizens or family members.
C. In Person Option
ICE does not intend to refuse surety companies or individuals from
posting a bond in-person at the appropriate ICE office. Cash bond
obligors and surety companies and their agents (on behalf of a
noncitizen) still have the option to appear in person at an ICE office
to request a bond be issued and approved. However, ICE intends to
largely transition to an electronic environment for the posting of
immigration bonds. ICE has developed eBONDS and CeBONDS, building in
numerous safeguards and conveniences for the obligors. ICE anticipates
high adoption of CeBONDS because it will be more convenient posting an
immigration bond online rather than physically traveling to the
appropriate ICE office. However, ICE recognizes that there will be
instances where non-electronic bond-related notifications will have to
be served by another authorized form of paper-based service (e.g.,
deficient electronic recipients, obligors who choose to post a bond in-
person). In such cases, obligors would receive non-electronic bond-
related notifications under the current system using certified,
registered, or regular mail.
D. E-SIGN Act
A bond is a contract with obligations on both ICE and the obligor.
When ICE approves an immigration bond, ICE engages in a governmental
function pursuant to its statutory and regulatory authority.\25\ Unlike
a ``service'' such as banking or lending where consumer disclosures are
mandated by law, such as the Truth in Lending Act \26\ or the Truth in
Savings Act,\27\ bond-related notifications are issued pursuant to the
bond contract and the regulatory scheme governing immigration
bonds.\28\ Electronic bond-related notifications will serve as a valid
form of notice that
[[Page 53363]]
are reasonably calculated to inform an individual of the requirement to
take some action. For example, Rule 4(f)(3) of the Federal Rules of
Civil Procedure allows service of process by email under certain
circumstances.
---------------------------------------------------------------------------
\25\ See INA 103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3); 8 CFR
236.1(c)(10); 8 CFR 240.25(b), 8 CFR 1240.26(b)(3)(i), (c)(3)(i);
and 8 CFR 241.5(b).
\26\ 15 U.S.C. 1601-1667f (requiring creditors who loan to
consumers to make certain written disclosures concerning finance
charges).
\27\ 12 U.S.C. 4301 et seq. (applicable to all insured
depository institutions and credit unions and imposing standardized
disclosures about interest rates and fees on deposit accounts).
\28\ See 8 CFR 236.1(c)(10); 8 CFR 240.25(b), 8 CFR
1240.26(b)(3)(i), (c)(3)(i); and 8 CFR 241.5(b).
---------------------------------------------------------------------------
Requiring obligors using eBONDS and CeBONDS to accept electronic
notifications is permissible under the E-SIGN Act.\29\ If an electronic
notification is returned as undeliverable or is received but not opened
by the obligor within seven days (resulting in the obligator being
deficient), ICE will reissue the electronic bond-related notification
in another authorized form of paper-based service to the obligor's most
recent address on record. However, ICE recognizes that mailing bond-
related notifications to the obligor's address of record may result in
a delay and one bond-related notification being served multiple times
(e.g., the electronic notification in the immigration bonds system
followed by paper-based service to the address of record).
---------------------------------------------------------------------------
\29\ Under the definition of a ``consumer'' by the E-SIGN Act,
bond obligors are not ``consumers'' because a ``product or service''
is not obtained through the transaction of posting a bond. An
obligor does not meet the definition of ``consumer'' for any of the
three types of bonds (delivery bonds, voluntary departure bonds, and
order of supervision bonds) issued by ICE. See 15 U.S.C. 7006(1).
---------------------------------------------------------------------------
Further, because participation in eBONDS currently requires consent
to receive electronic bond-related notifications, and participation in
CeBONDS will require the same consent when that system is developed and
fully implemented, ICE is not required to obtain separate or additional
consent before issuing electronic bond-related notifications to
obligors using CeBONDS or eBONDS for the changes made by this rule. All
obligors posting bonds in eBONDS or CeBONDS must consent to receive
electronic bond-related notifications as a pre-condition of enrolling
in and using the systems. As such, any consent requirements of the E-
SIGN Act will be satisfied.
VI. Statutory and Regulatory Requirements
DHS developed this rule after considering numerous statutes and
Executive orders related to rulemaking. The sections below summarize
the analyses based on a number of these statutes or Executive orders.
A. Administrative Procedure Act
The APA requires agencies to provide public notice and seek public
comment on substantive regulations. See 5 U.S.C. 553. The APA, however,
provides limited exceptions to this requirement for notice and public
comment, including for ``rules of agency organization, procedure, or
practice.'' See 5 U.S.C. 553(b)(A). In the D.C. Circuit's ``oft-cited
formulation,'' this procedural-rule exception `` `covers agency actions
that do not themselves alter the rights or interests of parties,
although it may alter the manner in which the parties present
themselves or their viewpoints to the agency.'' JEM Broad. Co., Inc. v.
FCC, 22 F.3d 320, 326 (D.C. Cir. 1994) (quoting Batterton v. Marshall,
648 F.2d 694, 707 (D.C. Cir. 1980)); see also Mendoza v. Perez, 754
F.3d 1002, 1023-24 (D.C. Cir. 2014). This rule adds another method
(e.g., electronic service) for ICE to serve bond-related notifications
for anyone enrolling in or using an ICE electronic bonds systems. This
rule expressly permits ICE to serve electronic bond-related
notifications for all immigration bonds through the eBONDS and CeBONDS
systems. Neither DHS nor ICE are removing or limiting any of the
current methods of service found in 8 CFR 103.8(a)(1) or (2). For these
reasons, DHS believes that these changes are procedural in nature,
improve the effectiveness and efficiency of agency operations, and do
not alter substantive rights. Therefore, because this IFR is
procedural, notice and opportunity for public comment are not required.
See 5 U.S.C. 553(b)(A). DHS nevertheless invites comments on this IFR
and will consider all timely comments submitted during the public
comment period as described in the ADDRESSES section.
B. Executive Orders 12866 and 13563: Regulatory Review
Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
direct agencies to assess the costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety effects, distributive
impacts, and equity). Executive Order 13563 emphasizes the importance
of quantifying both costs and benefits, of reducing costs, of
harmonizing rules, and of promoting flexibility.
This IFR has not been designated a ``significant regulatory
action,'' under section 3(f) of Executive Order 12866, as amended by
Executive Order 14094. Accordingly, the rule has not been reviewed by
the Office of Management and Budget. The analysis period of this rule
covers 10 years to ensure it captures impacts that accrue over time.
DHS expresses quantified impacts in 2021 dollars and uses discount
rates of 3 and 7 percent, pursuant to Circular A-4.
Summary of the Analysis
DHS estimates that the IFR will have public costs and unquantified
benefits, and result in cost-savings and unquantified benefits to the
Government. The overall quantified impact of this rule is a net savings
of $1,062,712 discounted at 3 percent and $655,278 discounted at 7
percent, with unquantified benefits expected to outweigh the
unquantified costs. The rule is expected to expedite delivery and
improve the reliability of service of bond-related notifications. In
accounting for the costs and cost-savings of this IFR, ICE has assumed
that all current obligors will transition to electronic notification
within the first year of the publishing of this IFR. New bond obligors
enrolling in CeBONDS or eBONDS will de facto agree to the use of
electronic notifications as a feature of using these systems, though
they will have the option to utilize physical notification under
certain circumstances, such as an obligor lacking the means to access
the internet. Lastly, while the analysis assumes that bond obligors
will enroll in these services sooner rather than later, full adoption
may ultimately depend on several factors, such as obligors being made
aware of these changes, understanding the benefits of these provisions,
and possessing the means to access the internet. Table 1 summarizes the
findings of this regulatory impact analysis (RIA).
[[Page 53364]]
Table 1--OMB Circular A-4 Accounting Statement 2021
[Millions]
------------------------------------------------------------------------
Category Impact Source
------------------------------------------------------------------------
Benefits
------------------------------------------------------------------------
Annualized Monetized Benefits ($
Mil)
(3%)........................ .................. RIA.
(7%)........................ .................. RIA.
Annualized Quantified, but
Unmonetized, Benefits.
Unquantified Benefits........... Improved program RIA.
delivery. Reduced
paper waste.
------------------------------------------------------------------------
Costs
------------------------------------------------------------------------
Annualized Monetized Costs ($
Mil)
(3%)........................ -0.124............ RIA.
(7%)........................ -0.093............ RIA.
Annualized Quantified, but
Unmonetized, Costs.
Unquantified Costs.............. Cost to public to RIA.
access electronic
system.
------------------------------------------------------------------------
Transfers
------------------------------------------------------------------------
Annualized Monetized Transfers..
From Whom to Whom...............
------------------------------------------------------------------------
Other Analyses
------------------------------------------------------------------------
Effects on State, Local, and/or No Impact......... IFR.
Tribal Governments.
Effects on Small Business....... Undetermined...... IFR.
Effects on Wages................
Effects on Growth...............
------------------------------------------------------------------------
Background and Purpose of Interim Final Rule
As part of its mission to enforce U.S. immigration laws, ICE
currently issues a wide range of notices, decisions, and other
documents to entities such as, but not limited to, universities,
businesses, noncitizens, courts, and employees. Current regulations
authorize ICE to serve documents in-person or by certified, registered,
or regular mail. However, serving documents in this manner can take
time and be more costly, compared to electronic methods of service. The
IFR authorizes ICE to serve electronic bond-related notifications to
obligors who enroll in CeBONDS and eBONDS.
Currently, ICE uses certified mail for the service of demand
notices issued on delivery bonds so that ICE can confirm the date upon
which an obligor receives the demand notice. Since 2010, ICE has
employed eBONDS, which is a web-based system used primarily by surety
agents and ICE to facilitate the ICE immigration bond management
process. This system was implemented to allow surety agents the option
to post surety bonds electronically for noncitizens determined by ICE
to be eligible for release on bond. Additionally, eBONDS was built with
functionality that included the ability to serve electronic bond-
related notifications to surety companies and their agents within
eBONDS for those companies who opted-in to electronic service, but due
to current regulatory requirements for personal and routine service,
that capability has not been implemented in eBONDS.\30\ See 8 CFR
103.8(a)(1) and (2). Similarly, ICE is currently developing CeBONDS to
allow cash bond obligors to post cash immigration bonds online without
obligors having to appear in person at an ICE office. CeBONDS will
offer to individuals posting cash bonds all the conveniences that
eBONDS provides to surety companies. This IFR will allow ICE to fully
implement eBONDS and CeBONDS by authorizing ICE to serve bond-related
notifications electronically for those who-consent, setup an account,
and utilize the eBONDS and CeBONDS systems.
---------------------------------------------------------------------------
\30\ Mead, Gary. ``Privacy Impact Assessment Update for the
Bonds Online System (eBONDS) Phase Two.'' January 23, 2013,
Available at: <a href="https://www.dhs.gov/sites/default/files/publications/ice-pia-008-a-ebonds-2013.pdf">https://www.dhs.gov/sites/default/files/publications/ice-pia-008-a-ebonds-2013.pdf</a>, accessed Mar. 16, 2021.
---------------------------------------------------------------------------
Time Horizon for the Analysis
ICE estimates the economic effects of this IFR will be sustained
indefinitely. ICE assumes a 10-year timeframe to outline, quantify, and
monetize the costs and benefits of the rule, and to demonstrate its net
effects.
Analysis Considerations
With regard to bond-related notifications, ICE derived quantitative
estimates of the costs that will be saved in ICE's operations,
attributable to ICE serving the notifications electronically rather
than through a non-electronic method. In order to calculate these
estimates, this analysis assumes that full use of eBONDS and CeBONDS
will require that current obligors transition from physical
notifications to that of electronic notifications as they become
familiar with the changes presented in this IFR. Based on input from
ICE subject matter experts, this analysis also assumes that the
majority of current bond obligors will adopt these services within the
first year of publishing this rule to realize the benefits of
electronic bond-related notifications, and will elect to use these
services sooner rather than later. However, while the analysis assumes
that the majority of bond obligors will utilize these systems, full
adoption may ultimately depend on several factors, such as obligors
being made aware of these changes, understanding the benefits of these
provisions, and possessing the means to access the internet. Lastly,
this estimate does not account for any change in the total number of
notices that will occur in the future, or under circumstances when ICE
needs to send paper notices
[[Page 53365]]
by mail if emails fail, or the possibility of less than full adoption
by the public. With this IFR, new bond obligors utilizing CeBONDS and
eBONDS will automatically enroll in electronic notifications upon
consent, though they will have the option to utilize physical
notification under certain circumstances--such as an obligor lacking
the means to access the internet.
Affected Population
The IFR will affect ICE officers and all bond obligors who post
immigration bonds online using CeBONDS or eBONDS. Once ICE has the
ability to serve electronic notifications to bond obligors, ICE will
begin to serve all bond-related notifications electronically to any
obligor who chooses to post a bond electronically.
To account for these populations, ICE utilized its Bond Management
Information System to collect and analyze data on surety companies and
their agents that post bonds and data on individual obligors who post
cash bonds. Using this information, ICE found that an average of 41,820
cash bonds were posted annually by obligors between fiscal years 2018
and 2020. Additionally, ICE found that between fiscal years 2018 and
2020, a total of 15 agents and 11 surety companies posted ICE
immigration bonds on behalf of surety bond obligors. Combined, these
representatives posted bonds for an average 8,190 obligors. Table 2
displays this information below by fiscal year and category of bonds.
Table 2--Total Bonds Posted by Cash and Surety Obligors
----------------------------------------------------------------------------------------------------------------
Category 2018 2019 2020 Average
----------------------------------------------------------------------------------------------------------------
Surety Bonds.................................... 8,081 9,098 7,391 8,190
Cash Bonds...................................... 49,793 50,135 25,531 41,820
---------------------------------------------------------------
Total....................................... 57,874 59,233 32,922 50,010
----------------------------------------------------------------------------------------------------------------
Source: DHS/ICE Bond Management Information System (BMIS).
Baseline
This section details the regulatory baseline for this IFR. The
table below provides a summary of the anticipated changes to baseline
conditions due to this IFR.
Table 3--Summary of Expected Impacts
----------------------------------------------------------------------------------------------------------------
Cost impact to
Provision Description of Affected affected Benefit impact
change population population
----------------------------------------------------------------------------------------------------------------
Serve Bond-Related Notices Serve all All bond obligors <bullet> <bullet> Improved
Electronically. immigration (ICE) who post Familiarization program delivery.
bond-related immigration bonds costs.
notifications online using the <bullet> Potential
electronically to CeBONDS or eBONDS technology costs.
bond obligors who system. <bullet>
have posted a Opportunity
bond using the costs..
eBONDS and
CeBONDS systems.
Federal Government <bullet> Program <bullet> Expedited
cost savings. Notifications.
----------------------------------------------------------------------------------------------------------------
Current Regulatory Baseline
Currently, ICE uses routine service as defined by 8 CFR 103.8(a)(1)
to serve breach notices, cancellation notices, and notices of bond
breach reconsideration decisions. ICE performs the routine service by
sending first-class mail to the obligor's last known address. ICE also
uses routine service to serve invoices and demand letters to surety
companies and their agents, sending them either by regular mail, an
alternative mailing method that allows ICE to track and confirm
delivery, or email (with the co-obligors' consent).
Additionally, ICE uses personal service as defined by 8 CFR
103.8(a)(2) \31\ to effect service of demand notices issued on delivery
bonds so that ICE may confirm the date on which the obligor receives
the demand notice. Currently, for ICE, ``personal service'' may be
effected through any of the following methods: personal delivery;
delivery at a person's home or usual residence by providing a copy to a
person of suitable age and discretion; delivery at the office or
residence of an attorney or representative; or mailing by certified or
registered mail, with return receipt requested, to a person's last
known address.
---------------------------------------------------------------------------
\31\ Except that portion of 8 CFR 103.8(a)(2) that is applicable
solely to USCIS.
---------------------------------------------------------------------------
To establish a baseline analysis for all bond-related notices, ICE
calculated the average number of notifications served by mail per year,
of each type of immigration bond, based on data from 2018 to 2020
(Table 4). ICE found the average number of all types of notifications
per year to be 45,358.
---------------------------------------------------------------------------
\32\ Source: DHS/ICE BMIS. Accessed July 26, 2021.
Table 4--Types of Immigration Bond Notices
------------------------------------------------------------------------
Average annual
number of
Notice type notices \32\
mailed (2018-
2020)
------------------------------------------------------------------------
I-391 Cash Bond Cancellations........................... 15,317
I-340 Cash Bond Obligor to Deliver Noncitizen........... 12,020
I-323 Cash Bond Breaches................................ 7,128
I-340 Surety Bond Obligor to Deliver Noncitizen......... 6,080
I-391 Surety Bond Cancellations......................... 2,841
I-323 Surety Bond Breaches.............................. 1,412
Surety Bond Motion to Reopen or Reconsider.............. 306
Cash Bond Motion to Reopen or Reconsider................ 254
---------------
Total............................................... 45,358
------------------------------------------------------------------------
[[Page 53366]]
ICE anticipates that, in the absence of this rulemaking, the agency
would continue to serve all bond-related notifications using personal
or routine service, at a cost to both the Federal Government and the
recipients. ICE would still be required to process and serve
notifications manually, and bond obligors would continue to receive
physical notifications via an authorized form of paper-based service.
Costs of the Interim Final Rule
This alternative electronic method of ICE's process for serving
bond notices has the potential to introduce familiarization,
technology, and opportunity costs to the affected population.
Quantified Costs
Familiarization--A likely impact of the IFR is that various
individuals and other entities will incur costs associated with
familiarization with the provisions of the rule. Familiarization costs
involve the time spent reviewing and learning the provisions of a rule.
Various offices throughout ICE may review the rule to determine how
they are subject to the IFR. To the extent these entities are directly
regulated by the rule, familiarization costs would be incurred, and
those familiarization costs are a direct cost of the rule.
In addition to those being directly regulated by the rule, a wide
variety of other entities would likely choose to read the rule and
incur familiarization costs. For example, surety companies and
noncitizens may want to become familiar with the provisions of this
rule. At approximately 16,800 words, ICE estimates the time that would
be necessary to read the IFR would be approximately 56 to 67.2 minutes
per person, resulting in opportunity costs of time. Congruent with
other DHS impact analyses, ICE assumes the average professional reads
technical documents at a rate of 250 to 300 words per minute.\33\ An
entity, such as a surety company may have more than one person who
reads the IFR. Using the average hourly rate of total compensation as
$37.83 for all occupations (both civilian and private),\34\ ICE
estimates that the opportunity cost of time will range from $35.31 to
$42.37 per individual who must read and review the IFR (in 2021
dollars).\35\
---------------------------------------------------------------------------
\33\ See 87 FR 10570 (published February 24, 2022) and 87 FR
18078 (published March 29, 2022).
\34\ Average hourly total compensation $37.83 = ($39.01 civilian
workers + $36.64 private industry workers)/2; Total Compensation for
civilian workers and private industry workers: <a href="https://www.bls.gov/news.release/archives/ecec_06172021.pdf">https://www.bls.gov/news.release/archives/ecec_06172021.pdf</a>. Accessed July 12, 2022.
\35\ Calculation: ((Total compensation for civilian workers +
total compensation for private industry workers)/2) * (Time (in
minutes) to read rule--(lower or upper bound)) = (Opportunity cost
of time [OCT] to read rule) = $37.83 * (67.2/60) = $42.37, = $37.83
* (56/60) = $35.31. Word count estimated as of 8/15/2022.
---------------------------------------------------------------------------
While the analysis assumes the majority of bond obligors will
utilize these systems, there are many factors which may impact the
adoption of CeBONDS, such as awareness of the system and internet
access. Given this, ICE can provide a estimate for the number of people
that would familiarize themselves with this rule based on expected
users. To estimate this population, ICE utilized counts of bond
obligors \36\ and surety companies \37\ between 2018 and 2020 to derive
an annual average of 41,846 obligors (41,820 cash obligors + 11 surety
companies + 15 agents). Assuming that at least one person from each
entity would be responsible for reading the IFR, the total
familiarization cost would range from $1,477,582 to $1,773,015 (in 2021
dollars).\38\ The average of this estimated range for familiarization
for bond obligor entities, $1,625,299, is used in the accounting of the
first year of the cost of this rule.
---------------------------------------------------------------------------
\36\ Data was obtained from the BMIS, accessed July 16, 2021
(see Table 2). An average of 41,820 cash bonds were posted annually
between 2018 and 2020. ICE used the average cash bonds posted as an
estimate of the number of cash bond obligors. Cash bonds are
generally posted by noncitizens or loved ones.
\37\ This includes surety agents who post bonds of behalf of
obligors. ICE found that between fiscal year 2018 and 2020, a total
of 15 agents and 11 surety companies posted ICE immigration bonds on
behalf of surety bond obligors.
\38\ Range for total familiarization cost: lower bound $35.31 x
41,846 = $1,477,582; upper bound $42.37 x 41,846 = $1,773,015.
---------------------------------------------------------------------------
Account Creation--In accounting for the costs of electronic bond-
related notifications, ICE considered whether bond obligors or surety
companies would face opportunity costs to utilize eBONDs and CeBONDS.
For ICE to send notices electronically to bond obligors, the bond
obligors will need to create a personal account to access bond-related
notifications and process bond payments. ICE estimates the time that
would be necessary to create this account would be no more than 10
minutes. Using the average total rate of compensation as $37.83 \39\
per hour for all occupations, ICE estimates that the opportunity cost
of time will be $6.31 per individual (or surety company) who creates an
account. To estimate this population, ICE utilized a three-year average
population count \40\ of bond obligors between fiscal year 2018 and
2020 (from table 2) and assumes that most obligors will enroll into the
program within the first year of implementation The estimated total
opportunity cost during the first year adoption period for the current
obligor population to transition to these systems is $263,884.\41\ To
account for surety companies and surety agents, ICE also utilized BMIS
to account for each representative which posted surety bonds between
fiscal year 2018 and 2020, determining that a total of 15 agents and 11
surety companies had posted immigration bonds. The estimated total
opportunity cost during the first year adoption period for this
population to transition to these systems is $164.06.\42\
---------------------------------------------------------------------------
\39\ Includes both civilian and private occupations. <a href="https://www.bls.gov/news.release/archives/ecec_06172021.pdf">https://www.bls.gov/news.release/archives/ecec_06172021.pdf</a>. Accessed July
12, 2022.
\40\ Data was obtained from the Bond Management Information
System (BMIS), and utilized the number of unique Tax Identification
Numbers (TIN) for bond obligors within a given set of years.
Accessed July 16, 2021.
\41\ $263,884 = $6.31 x 41,820 annual average number of unique
cash bond obligors (see Table 2).
\42\ $164 = $6.30 x 26 annual average number of surety companies
and surety agents FY2018-FY2020.
---------------------------------------------------------------------------
Lastly, in order to determine the cost of new obligors entering the
pool and creating new accounts over the time horizon, ICE utilized
prior cash bond obligor population data from fiscal years 2018 to 2020
to project that an average of 41,820 new cash bond obligors would
create accounts each year. This would equate to a total cost to the
public of $2,639,006 over 10 years.
CeBONDS Development & Maintenance--CeBONDS began development in
April of 2021, with the total development cost for ICE being estimated
at roughly $1,507,000. The maintenance costs for ICE have been
estimated to be $150,000 annually.\43\ Similar to eBONDS, without this
rule, ICE would still develop and implement CeBONDS to allow obligors
to post cash bonds electronically and ICE would continue to serve all
bond-related notifications using personal or routine service.
Therefore, ICE did not include these development and maintenance costs
as a part of the total costs in this analysis since the development and
operation of the CeBONDS system is occurring independent of this IFR.
---------------------------------------------------------------------------
\43\ Estimates provided by ERO, Bond Management Unit, July 14,
2022.
---------------------------------------------------------------------------
Unquantified Costs
ICE also identified additional unquantified costs that could result
from this IFR.
Technology--In accounting for the costs of electronic bond-related
notifications, ICE considered whether
[[Page 53367]]
bond obligors would face technology costs to utilize these services,
namely the cost to access the internet. There are a variety of means by
which obligors can access the internet to receive electronic bond-
related notifications, including the use of smart phones or personal
computers. That said, due to the high prevalence and wide-ranging
public and private access the internet, including access to free WiFi
in public and private locations, access to computers and internet at
public libraries, as well as likely connections to family and friends
who have ready access to the internet, ICE expects bond obligors who
opt for electronic service will be able to gain access with de minimis
cost. Furthermore, obligors can still opt out of electronic service and
follow the same practice as in the baseline case. It is unclear how
many obligors will choose to use the in-person option, but since the
rule provides greater flexibility by permitting electronic service
while retaining the existing method for paying bonds, ICE does not
expect the rule to induce substantive access costs.
Validity Check--In creating the online account for obligors, ICE
will perform a validity check as part of the sign-up process for
receiving electronic bond-related notices, as users cannot complete
their account creation if their email is not first validated. The time
burden to perform this check will be based on how long it takes for ICE
to submit a verification email to the provided email address and
confirm the accuracy of that address. However, because this process
will likely be automated via computer software that is already
available to ICE (see CeBONDS system development costs), ICE does not
expect this process to produce a substantive cost.
Total Estimated Costs
Table 5 summarizes the quantified impact of this IFR. The total
monetized costs of the rule do not include the development and annual
maintenance costs required to operate the CeBONDS system given that
they are not tied to this this IFR, as discussed above. The 10-year
costs of the IFR are approximately $3.83 million and $3.37 million (in
2021 dollars) at 3 and 7 percent discount rates, respectively, and
include the opportunity costs of familiarization and setting up an
online account.
Table 5--Total Estimated Quantified Costs
----------------------------------------------------------------------------------------------------------------
Annual costs Annual costs
Year Undiscounted discounted at discounted at
costs 3% 7%
----------------------------------------------------------------------------------------------------------------
1............................................................... $1,889,347 $1,834,317 $1,765,745
2............................................................... 263,884 248,736 230,487
3............................................................... 263,884 241,491 215,408
4............................................................... 263,884 234,458 201,316
5............................................................... 263,884 227,629 188,146
6............................................................... 263,884 220,999 175,837
7............................................................... 263,884 214,562 164,334
8............................................................... 263,884 208,312 153,583
9............................................................... 263,884 202,245 143,536
10.............................................................. 263,884 196,354 134,145
-----------------------------------------------
Total....................................................... 4,264,303 3,829,103 3,372,537
-----------------------------------------------
Annualized.............................................. .............. 448,888 480,173
----------------------------------------------------------------------------------------------------------------
Cost Savings of the Interim Final Rule
This alternative method of ICE's process for issuing electronic
bond-related notifications is expected to reduce labor costs for the
government by reducing the time needed to process these notices, and it
will eventually significantly reduce, if not eliminate, the costs of
material items such as postage and paper that would otherwise be
incurred for notices that are physically mailed. As mentioned above,
ICE calculates quantitative benefits based on the assumption that new
obligors are incentivized toward adoption into the eBONDS and CeBONDS
systems within the first year of publishing this IFR.
Cost Savings to Electronically Served Bond-Related Notifications
Mailing Cost Savings--ICE estimated the cost-savings to government
that would be obtained from a 100 percent transition to electronic
service of immigration bond-related notifications to be $573,470 per
year (in 2021 dollars). To arrive at the full cost savings estimate,
ICE calculated the average cost of sending physical notices by
certified or first-class mail. Specifically, ICE calculated the time
required for an ICE official to collect, process, and place in the mail
each physical notice, which was 5 minutes. ICE divided the 5 minutes by
60 minutes per hour, and multiplied by $52.87, which is the fully
loaded average hourly wage based on a General Schedule Grade 11, Step
10 salary, with a ``Rest of U.S.'' locality payment of 15.95
percent.\44\ ICE based the fully loaded wage rate on the wage rate of
$40.27 per hour, adjusted upward by 31.3 percent to account for
compensation for benefits (in addition to wages).\45\ This calculation
resulted in an estimated labor cost of $4.41 per mailing. ICE then
added this labor cost to the cost of materials (for the envelope,
paper, etc.) \46\ and the postage per notice (which varies depending on
the type of notice) to determine the various costs per notice. ICE then
multiplied this total by the number of pieces that are mailed per
notice (which also varies depending on the type of notice), and by the
average total number of notices issued for each type. Table 6 displays
how the total cost of $573,470 was derived.
---------------------------------------------------------------------------
\44\ <a href="https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/21Tables/html/RUS_h.aspx">https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/21Tables/html/RUS_h.aspx</a>.
\45\ <a href="https://www.bls.gov/news.release/archives/ecec_03182021.pdf">https://www.bls.gov/news.release/archives/ecec_03182021.pdf</a>
(released Mar 18, 2021).
\46\ Source: Cost per notice estimates provided by ERO Bond
Management Unit and include, when applicable, costs for certified
mail, postage, paper, envelopes, and materials (such as toner/ink).
July 26, 2021.
[[Page 53368]]
Table 6--Government Cost Savings of Bond-Related Notices
----------------------------------------------------------------------------------------------------------------
Average
number of Cost per
Notice type notices mailed notice * Total cost
(2018-2020)
----------------------------------------------------------------------------------------------------------------
I-391 Cash Bond Cancellations................................... 15,317 $5.08 $77,810
I-340 Cash Bond Obligor to Deliver Alien........................ 12,020 9.99 120,080
I-323 Cash Bond Breaches........................................ 7,128 9.99 71,209
I-340 Surety Bond Obligor to Deliver Alien...................... 6,080 39.95 242,896
I-391 Surety Bond Cancellations................................. 2,841 10.16 28,865
I-323 Surety Bond Breaches...................................... 1,412 19.98 28,212
Surety Bond Motion to Reopen or Reconsider...................... 306 10.16 3,109
Cash Bond Motion to Reopen or Reconsider........................ 254 5.08 1,290
-----------------------------------------------
Totals...................................................... 45,358 110.39 573,470
----------------------------------------------------------------------------------------------------------------
* Labor cost included per notice is $4.41.
Total Estimated Quantified Savings
Table 7 summarizes the quantified cost savings of this interim
final rule. The total monetized savings of the rule includes the
average cost savings for ICE of replacing physically mailed notices (by
certified, registered, or regular mail) with electronic bond-related
notifications. In order to capture these cost savings over the time
horizon of the analysis, ICE assumed a constant average rate of notices
over a ten-year period. Thus, this estimate does not account for any
change in the total number of notices that may occur in the future, or
circumstances under which ICE needs to send paper notices by mail if
emails fail, or the possibility of less than full adoption by the
public. The 10-year cost-savings of the interim final rule in 2021
dollars are $4.9 million and $4.0 million at 3 and 7 percent discount
rates, respectively.
Table 7--Total Estimated Quantified Cost Savings
----------------------------------------------------------------------------------------------------------------
Annual cost- Annual cost-
Undiscounted savings savings
Year cost-savings discounted at discounted at
3% 7%
----------------------------------------------------------------------------------------------------------------
1............................................................... $573,470 $556,767 $535,953
2............................................................... 573,470 540,550 500,891
3............................................................... 573,470 524,806 468,122
4............................................................... 573,470 509,521 437,498
5............................................................... 573,470 494,680 408,876
6............................................................... 573,470 480,272 382,127
7............................................................... 573,470 466,284 357,128
8............................................................... 573,470 452,703 333,765
9............................................................... 573,470 439,517 311,930
10.............................................................. 573,470 426,716 291,523
-----------------------------------------------
Total....................................................... 5,734,700 4,891,815 4,027,813
-----------------------------------------------
Annualized.............................................. .............. 573,470 573,470
----------------------------------------------------------------------------------------------------------------
Unquantified Benefits of the Interim Final Rule
This alternative method of ICE's process for issuing electronic
bond-related notifications is expected to increase efficiency,
accessibility, expedited delivery, and reliability of bond notices to
the obligor. These benefits are described in more detail below.
Program Delivery--By serving bond-related notifications
electronically and making bond obligors responsible for ensuring that
electronic bond-related notifications can be received, ICE expects it
will significantly reduce the number of bond-related notifications that
are not received by the obligor. A random sample of 100 delivery cash
bonds that were declared as being breached during calendar years 2017-
2019 indicates that approximately 28 percent of demand notices sent by
certified mail to the obligor's address of record were returned as
undeliverable or unclaimed.\47\ Electronic bond-related notifications
will significantly reduce the occurrence of notices being lost in the
mail during delivery, while still providing notifications in the event
that obligors move from their physical address or are away from that
address for an extended period of time. Additionally, in creating the
online account for obligors, ICE will perform a validity check as part
of the sign-up process for receiving electronic bond-related notices,
as users cannot create an online account if their email is not
validated. This use of a verified email address will ensure that the
notices have a high probability of being successfully delivered
electronically to an email address that the obligor uses, ensuring that
the notification reaches its proper recipient.
---------------------------------------------------------------------------
\47\ Data obtained internally by DHS/ICE Bond Management
Information System (BMIS), Financial Service Center-Burlington.
Accessed on Mar. 8, 2021.
---------------------------------------------------------------------------
ICE also intends to expedite delivery of notifications. For
example, when an obligor chooses to post a bond online and receive
bond-related notifications electronically, the system is designed to
notify the obligor immediately by email when a notification has been
issued. ICE, in turn, would also be able to confirm immediately the
date that the cash bond obligor opens and
[[Page 53369]]
acknowledges receipt of the electronic notification. In this way,
recipients can receive notifications without being present at their
physical mailing address as long as they have access to the internet.
Paperless Records--The changes due to this IFR are consistent with
the types of changes now being made across the Federal Government
regarding the mechanisms through which Federal offices deliver
documents to the public. In accordance with the Government Paperwork
Elimination Act,\48\ electronic notifications have significantly
reduced the use of paper and physical storage space.
---------------------------------------------------------------------------
\48\ See Public Law 105-277, tit. XVII, section 1703, 112 Stat.
2681, 2681-749 (Oct. 21, 1998), 44 U.S.C. 3504.
---------------------------------------------------------------------------
Alternative Analysis
Before proposing service of electronic bond-related notifications,
ICE evaluated one alternative option that would affect the entities
subject to the rule requirements, namely the no action alternative. The
details of this option are described below, and Table 8 presents the
unquantified costs and benefits for this alternative.
Table 8--Summary of Alternatives
------------------------------------------------------------------------
Action Benefits Costs
------------------------------------------------------------------------
<bullet> Take No Action..... <bullet> No <bullet> Cost to
familiarization, process
technology, or nonelectronic mail.
opportunity cost to <bullet>
public. Nonalignment with
the Government
Paperwork
Elimination Act.
<bullet> No
improvement in
program delivery.
<bullet> Costs to
maintain physical
records.
------------------------------------------------------------------------
Alternative: Take No Action
ICE considered a ``no action'' alternative under which ICE would
continue to serve bond-related notifications to obligors for
immigration bonds using personal or routine service, at a cost to both
the Federal Government and the recipients.
The opportunity costs associated with electing a ``no action''
alternative would be equivalent to the current average cost to ICE of
sending physical notices by certified or first-class mail, which ICE
estimated to be $573,470 per year. ICE would still be required to
process and mail notifications by hand, and bond obligors would
continue to receive physical notifications. This alternative also means
that ICE would not be acting in alignment with government-wide efforts
to transition agencies' business processes and recordkeeping to a fully
electronic environment as encouraged by statutes like the Government
Paperwork Elimination Act,\49\ and more recently, the joint memorandum
issued by OMB and the National Archives and Records Administration \50\
requiring the government to store records electronically. Additionally,
this alternative of ``no action'' would also not result in any cost
savings with regard to system development or deployment, because the
eBONDS systems was already built and deployed independent of this IFR
and the CeBONDS system is already being built and deployed independent
of this IFR.
---------------------------------------------------------------------------
\49\ Public Law 105-277, tit. XVII, section 1703, 112 Stat.
2681, 2681-749 (Oct. 21, 1998), 44 U.S.C. 3504.
\50\ Transition to Electronic Records (OMB/NARA M-19-21),
available at <a href="https://www.archives.gov/files/records-mgmt/policy/m-19-21-transition-to-federal-records.pdf">https://www.archives.gov/files/records-mgmt/policy/m-19-21-transition-to-federal-records.pdf</a>.
---------------------------------------------------------------------------
The cost savings and benefits associated with this action involve
the development, familiarization, technology, and opportunity costs
associated with implementing this IFR. Absent the requirement to use
the CeBONDS system, bond obligors would not face the potential costs
associated with learning about the IFR, acquiring the necessary
technological means to access the internet, or the expended time in
creating an eBONDS or CeBONDS account.
Additionally, any preference by obligors either to maintain
physical records or to receive nonelectronic mail notices has already
been considered in the development of IFR. As part of the process of
deciding to post a bond electronically with ICE, the obligor will be
informed that bond notifications will be served electronically, and the
obligor must agree to receive them electronically. If the obligor does
not wish to post a bond electronically or receive bond notifications
electronically, the obligor may post the bond in-person at an ICE
office and receive notifications via another form of authorized paper-
based service.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act at 5 U.S.C. 603 requires agencies to
consider the economic impact its rules will have on small entities. The
term ``small entities'' comprises small business, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations of less than 50,000. However, a regulatory flexibility
analysis is not required when a rule is exempt from notice and comment
rulemaking. This IFR is exempt from the notice and comment rulemaking,
as stated in the APA, 5 U.S.C. 551 et seq., section of the preamble.
Therefore, a regulatory flexibility analysis is not required for this
rule.
D. Small Business Regulatory Enforcement Fairness Act of 1996
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104-121, DHS wants to assist small
entities in understanding this rule so that they can better evaluate
the effects on them and participate in the rulemaking. If the rule
would affect your small business, organization, or governmental
jurisdiction, and you have questions concerning the provisions or
options for compliance; please consult ICE using the contact
information provided in the FOR FURTHER INFORMATION section above.
E. Congressional Review Act
This rule is not a major rule as defined by 5 U.S.C. 804, also
known as the ``Congressional Review Act,'' as enacted in section 251 of
the Small Business Regulatory Enforcement Fairness Act of 1996, Public
Law 104-121, 110 Stat. 847, 868 et seq. This rulemaking would not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based companies to compete with foreign based companies
in domestic and export markets. A report about the issuance of this IFR
has been submitted to Congress and the
[[Page 53370]]
Comptroller General of the United States prior to its effective date.
F. Unfunded Mandates Reforms Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Unfunded Mandates Reform Act
addresses actions that may result in the expenditure by a State, local,
or tribal government, in the aggregate, or by the private sector of
$100,000,000 (adjusted for inflation) or more in any year. Though this
rule would not result in such an expenditure, DHS does discuss the
effects of this rule elsewhere in this preamble.
G. Paperwork Reduction Act--Collection of Information
All Departments are required to submit to OMB for review and
approval any reporting or recordkeeping requirements inherent in a rule
under the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, 109
Stat. 163 (codified at 44 U.S.C. 3501 et seq.). Under the PRA, an
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless the agency obtains
approval from OMB for the collection and the collection displays a
valid OMB control number. See 44 U.S.C. 3506, 3507.
With respect to immigration bonds, regardless of using either
eBONDS today or CeBONDS in the future when fully implemented, there
would be no changes to the reporting burden for the existing collection
of information associated with Form I-352, Immigration Bond (OMB
control number 1653-0022), or Form I-333, Obligor Change of Address
(OMB control number 1653-0042). There are no substantive changes to
those forms because of this rulemaking. The only changes being made are
revisions that will need to be included in the electronic system
currently being built to accommodate electronic bond related
notifications. Once CeBONDS is fully developed and this rule is
effective, if DHS identifies any impacts that would modify or create a
new collection, DHS will submit a revision to OMB at that time.
H. Executive Order 13132: Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. DHS has analyzed this rule under
Executive Order 13132 and determined that it does not have implications
for federalism.
I. Executive Order 12988: Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to eliminate drafting
errors and ambiguity, minimize litigation, provide a clear legal
standard for affected conduct, and promote simplification and burden
reduction.
J. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
DHS analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. DHS has determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy.
K. National Environmental Policy Act (NEPA)
The U.S. Department of Homeland Security Management Directive (MD)
023-01, Rev. 01 establish procedures that DHS and its Components use to
comply with the National Environmental Policy Act of 1969 (NEPA), 42
U.S.C. 4321-4375, and the Council on Environmental Quality (CEQ)
regulations for implementing NEPA, 40 CFR parts 1500 through 1508.
CEQ regulations allow Federal agencies to establish categories of
actions, which do not individually or cumulatively have a significant
effect on the human environment and, therefore, do not require an
Environmental Assessment or Environmental Impact Statement. 40 CFR
1508.4. The DHS Categorical Exclusions are listed in IM 023-01-001-01
Rev. 01, Appendix A, Table 1.
For an action to be categorically excluded, MD 023-01 requires the
action to satisfy each of the following three conditions:
(1) The entire action clearly fits within one or more of the
Categorical Exclusions;
(2) The action is not a piece of a larger action; and
(3) No extraordinary circumstances exist that create the potential
for a significant environmental effect. IM 023-01-001-01 Rev. 01, sec.
V(B)(2)(a)-(c). If the action does not clearly meet all three
conditions, DHS or the Component prepares an Environmental Assessment
or Environmental Impact Statement, according to CEQ requirements, MD
023-01, and IM 023-01-001-01 Rev. 01.
ICE has analyzed this rule under MD 023-01 Rev. 01 and IM 023-01-
001-01 Rev.01. ICE has made the determination that this rulemaking
action is one of a category of actions, which does not individually or
cumulatively have a significant effect on the human environment. This
IFR clearly fits within the Categorical Exclusion found in IM 023-01-
001-01 Rev. 01, Appendix A, Table 1, number A3(d): ``Promulgation of
rules . . . that interpret or amend an existing regulation without
changing its environmental effect.'' This rule is not part of a larger
action. This rule presents no extraordinary circumstances creating the
potential for significant environmental effects. Therefore, this rule
is categorically excluded from further NEPA review.
ICE seeks any comments or information that may lead to the
discovery of any significant environmental effects from this IFR.
L. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it would not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.
M. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not cause a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
N. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 requires agencies to consider the impacts of
environmental health risk or safety risk that may disproportionately
affect children. DHS has reviewed this rule and determined that this
rule is not an economically significant rule and would not create an
environmental risk to
[[Page 53371]]
health or risk to safety that might disproportionately affect children.
Therefore, DHS has not prepared a statement under this executive order.
O. National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act of 1995 (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impracticable. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies. This rule does not use technical standards.
Therefore, DHS did not consider the use of voluntary consensus
standards.
P. Family Assessment
DHS has determined that this rule action will not affect family
well-being within the meaning of section 654 of the Treasury and
General Government Appropriations Act, enacted as part of the Omnibus
Consolidated and Emergency Supplemental Appropriations Act of 1999
(Pub. L. 105-277, 112 Stat. 2681).
List of Subjects in 8 CFR Part 103
Administrative practice and procedures, Authority delegations
(government agencies), Freedom of information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.
Regulatory Amendments
Accordingly, DHS amends chapter I of title 8 of the Code of Federal
Regulations as follows:
PART 103--IMMIGRATION BENEFIT REQUESTS; USCIS FILING REQUIREMENTS;
BIOMETRIC REQUIREMENTS; AVAILABILITY OF RECORDS
0
1. The authority citation for part 103 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356, 1365b; 31 U.S.C. 9701; Pub. L. 107-296, 116 Stat. 2135 (6
U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982
Comp., p. 166; 8 CFR part 2; Pub. L. 112-54; 125 Stat. 550; 31 CFR
part 223.
0
2. Section 103.6 is amended by adding paragraphs (g) and (h) to read as
follows:
Sec. 103.6 Immigration bonds.
* * * * *
(g) Delivery bond notifications to surrender aliens.
Notwithstanding the requirements of Sec. 103.8 for the service of
other notices, ICE may serve demand notices electronically or by any
mail service that allows delivery confirmation to bond obligors, who
consent to electronic delivery of service, to cause an alien who has
been released from DHS custody on an immigration delivery bond to
appear at an ICE office or an immigration court. An electronic record
from the ICE bonds system showing that the obligor opened the demand
notice will constitute valid proof of receipt service of the notice. If
ICE cannot confirm receipt of the electronic notice, ICE will reissue a
new another demand notice to the bond obligor's last known address
using any mail service that allows delivery confirmation.
(h) Bond breach, bond cancellation, and other bond notifications.
Notwithstanding the service requirements for demand notices in
paragraph (g) of this section, ICE may serve any other bond-related
notifications electronically or by first-class mail to obligors, who
consent to electronic delivery of service, that pertain to delivery,
order of supervision, or voluntary departure immigration bonds, such as
bond breach or cancellation notifications. An electronic record from
the ICE bonds system showing that the obligor opened the bond-related
notification will constitute valid proof of receipt service of the
notice. If ICE cannot confirm receipt of the electronic notice, ICE
will reissue another notice to the obligor's last known address using
regular mail.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2023-16656 Filed 8-7-23; 8:45 am]
BILLING CODE 9111-28-P
</pre></body>
</html>Indexed from Federal Register on August 8, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.