Rule2024-31358
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
January 6, 2025
Effective
January 6, 2025
Issuing agencies
Homeland Security Department
Abstract
On August 8, 2023, DHS issued an interim final rule which amended the regulations to authorize ICE to serve bond-related notices to obligors electronically. The rule allowed DHS to electronically serve demand and other immigration bond notices for delivery, order of supervision, or voluntary departure bonds to obligors who consent to electronic service. DHS is now issuing this final rule that introduces no substantive changes from the interim final rule.
Full Text
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<title>Federal Register, Volume 90 Issue 3 (Monday, January 6, 2025)</title>
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[Federal Register Volume 90, Number 3 (Monday, January 6, 2025)]
[Rules and Regulations]
[Pages 535-557]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-31358]
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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: Final rule.
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SUMMARY: On August 8, 2023, DHS issued an interim final rule which
amended the regulations to authorize ICE to serve bond-related notices
to obligors electronically. The rule allowed DHS to electronically
serve demand and other immigration bond notices for delivery, order of
supervision, or voluntary departure bonds to obligors who consent to
electronic service. DHS is now issuing this final rule that introduces
no substantive changes from the interim final rule.
DATES: The effective date of this final rule is January 6, 2025.
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, Washington, DC 20536. Telephone 202-732-6960 (this is not a toll-
free number).
SUPPLEMENTARY INFORMATION:
I. Background
A. Purpose of the Regulatory Action
The Department of Homeland Security (DHS) published an interim
final rule (IFR) on August 8, 2023,\1\ that established that DHS may
electronically serve demand notices, and other bond notices for
delivery, order of supervision, or voluntary departure bonds for
obligors who consent to electronic service. See 8 CFR 103.6(g) and (h).
This final rule adopts the IFR provisions in 8 CFR 103.6(g) and (h) to
electronically serve bond-related notices to obligors who consent to
electronic service. This final rule also amends typographical errors,
updates terminology for accuracy, and restructures regulatory text for
clarity and consistency in 8 CFR 103.6(g) and (h). This final rule
introduces no substantive changes from the IFR.
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\1\ Immigration Bond Notifications, 88 FR 53358 (Aug. 8, 2023).
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B. 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 DHS (the Secretary) with
administration and enforcement of the immigration and naturalization
laws. The Secretary promulgates this final rule 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.
[[Page 536]]
Under the Government Paperwork Elimination Act (GPEA), Public Law 105-
277, tit. XVII, section 1703, 112 Stat. 2681, 2681-749 (Oct. 21, 1998),
44 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.\2\ 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 enhance the ability of U.S.
Immigration and Customs Enforcement (ICE) to fully implement the GPEA.
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\2\ Office of Management and Budget, Transition to Electronic
Records (OMB/NARA M-19-21) (June 28, 2019), <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.\3\ 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'').\4\ ICE intends to comply with this requirement by obtaining
consent from immigration bond sureties and obligors to send electronic
notices.
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\3\ 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).
\4\ The provisions of the E-SIGN Act are generally inapplicable
to federal government agencies. See 15 U.S.C. 7003(b)(1) (``The
provisions of [E-SIGN Act] shall not apply to--(1) court orders or
notices, or official court documents (including briefs, pleadings,
and other writings) required to be executed in connection with court
proceedings;''). The Office of Management and Budget (OMB) has
concluded that based on the legislative history, Congress explicitly
excluded governmental transactions from coverage under the E-SIGN
Act. See OMB Guidance on Implementing the Electronic Signatures in
Global and National Commerce Act, M-00-15, Attachment at p.3.,
(September 2000), available at Memoranda 00-10--OMB Procedures and
Guidance on Implementing the Government. The White House
(<a href="http://archives.gov">archives.gov</a>) and ESIGN guidance.PDF (<a href="http://archives.gov">archives.gov</a>), updated by OMB
M-04-04, E-Authentication Guidance for Federal Agencies (Dec. 16,
2003). Accordingly, although the electronic consent complies with E-
SIGN requirements, such compliance is not required of DHS.
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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 on
a warrant and detained pending a decision on removal from the United
States, the Secretary may be authorized to ``release [the noncitizen]
on . . . (A) bond of at least $1,500 with security approved by, and
containing conditions prescribed by [the Secretary of Homeland
Security].'' 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. INA 236(b), 8 U.S.C. 1226(b).
Under the terms and conditions provided in Form I-352, Immigration
Bond, ``Federal law shall apply to the interpretation of the bond.''
ICE and the Department of Justice (DOJ) approve 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. . . .'' \5\ With respect to
surety bonds, the Secretary delegated to the ICE Director the
``[a]uthority to approve surety bonds 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.'' \6\
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\5\ DHS Delegation No. 7030.2, Delegation of Authority to the
Assistant Secretary for U.S. Immigration and Customs Enforcement, ]
2(T) (signed Nov. 13, 2004) (effective Mar. 1, 2003), <a href="https://www.ice.gov/doclib/foia/policy/7030.2_DelegationAuthority_03.01.2003.pdf">https://www.ice.gov/doclib/foia/policy/7030.2_DelegationAuthority_03.01.2003.pdf</a>.
\6\ DHS Delegation No. 7030.2, supra note 4, ] 2(U). 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.
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C. Background
ICE's mission is to protect America through criminal investigations
and enforcing immigration laws to preserve national security and public
safety.\7\ 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 including universities, businesses, courts,
and noncitizens.\8\ Generally, Department of Homeland Security (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(a).
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\7\ See U.S. Immigration and Customs Enforcement, <a href="https://www.ice.gov/mission">https://www.ice.gov/mission</a> (last visited Nov. 14, 2024).
\8\ The preamble of this Final Rule uses ``noncitizen'' as
equivalent to the statutory term ``alien.'' See Barton v. Barr, 590
U.S. 222, 226 n.2 (2020) (quoting 8 U.S.C. 1101(a)(3)).
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Current regulations define personal service 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. 8 CFR 103.8(a)(2); cf. 8 CFR 103.8(a)(3)
(providing additional methods for ``personal service involving notices
of intention to fine''). Personal service of initiating notice and of
notice of any
[[Page 537]]
decision is required in any proceeding initiated by DHS that has a
proposed adverse effect on the recipient, except as provided in section
239 of the INA. 8 CFR 103.8(c)(1). If the recipient is confined to a
penal or mental institution or hospital, or if the recipient is a minor
under the age of 14 or mentally incompetent, personal service to
additional entities or individuals may be required. 8 CFR 103.8(c)(1)
and (2).
When personal service is not required, the regulations allow
routine service to be used. See 8 CFR 103.8(d). Routine service
includes mailing a notice by ordinary mail addressed to the affected
party or the party's attorney or 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. 8
CFR 103.8(a)(1); see also 8 CFR part 292 (Representation and
Appearances); and 8 CFR part 1292 (Representation and Appearances).
D. 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 Form I-352, Immigration Bond. The posting of immigration
bonds can occur with the deposit of cash in the full principal amount
of the bond, known as ``cash bonds,'' \9\ 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.'' ICE approved 20,494 immigration bonds in 2023,\10\ of which
15,323 (75 percent) were cash bonds and 5,171 (25 percent) were surety
bonds. If the noncitizen performs the conditions set forth in the bond,
the bond will be cancelled. If the noncitizen substantially violates
the conditions of the bond, the bond will be considered breached. See 8
CFR 103.6(e).
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\9\ An immigration bond secured by a cash deposit posted by an
individual, law firm, non-profit organization, or other entity.
\10\ Immigration Bond Statistics maintained by ICE's Bonds
Branch, Financial Service Center-Burlington, as of January 17, 2024.
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An immigration bond may be posted by a surety company or a cash
bond obligor.\11\ 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 agent that posts a bond on behalf of a
surety is a co-obligor, 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 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. 11/23).\12\
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\11\ Provided that the surety company or cash bond obligor
satisfies all the requisite steps for ICE to accept the bond
payment.
\12\ Department of Homeland Security, Immigration and Customs
Enforcement (Nov. 2023), <a href="https://www.ice.gov/doclib/forms/i352.pdf">https://www.ice.gov/doclib/forms/i352.pdf</a>.
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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 (IJ) 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 20,494 immigration bonds that ICE issued in 2023, 91
percent were delivery bonds, 9 percent were voluntary departure bonds,
and fewer than 1 percent were order of supervision bonds.\13\
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\13\ Immigration Bond Statistics maintained by ICE's Bond
Management Unit, Non-Detained Management Division, Enforcement and
Removal Operations, as of January 17, 2024.
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To trigger an obligor's performance, ICE issues a demand notice,
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 to the obligor's last known address. 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 ordinary 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). See 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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If the noncitizen performs the conditions set forth in the bond,
the bond will be cancelled. 8 CFR 103.6(c). ICE will send a demand
notice to notify the obligor to deliver the noncitizen. 8 CFR 103.6(g).
If the noncitizen substantially violates the conditions of the bond,
the bond will be considered breached. 8 CFR 103.6(e).
Depending on the type of bond and action in accordance with the
bond, ICE may issue certain bond notices. The IFR and this final rule
currently apply to the following circumstances \15\ when ICE may serve
a bond notice electronically to obligors:
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\15\ However, the list is non-exhaustive in the sense that more
types of notices could be subject to electronic notice in the
future. The rule does not limit electronic service to these four
types of bond notices.
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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.\16\
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\16\ Form I-340 (rev. Dec. 2023).
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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.\17\
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\17\ Form I-323 (rev. Oct. 2020). See 8 CFR 103.6(e).
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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.\18\
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\18\ Form I-391 (rev. Mar. 2023).
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[[Page 538]]
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.\19\ 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.
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\19\ Form 71-042 (rev. Jan. 2013).
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In April 2023, ICE launched the Cash Electronic Bonds Online System
(CeBONDS), a web-based system that provides the public an automated,
secure online capability to verify bond information and post cash
immigration bonds for detained noncitizens. CeBONDS also provides the
capability for ICE to serve electronic notices to cash bond obligors
who consent to receive bond notices electronically. CeBONDS has allowed
obligors to initiate and process immigration bonds online without
having to visit an ICE office in person, making the process more
convenient for the public. Currently, the electronic service capability
is being further developed and finalized, and the system has not
electronically served bond notices to obligors yet.
E. Interim Final Rule
On August 8, 2023, DHS published the IFR, which authorized ICE to
serve bond-related notices electronically to obligors who consent to
electronic delivery of service.\20\ DHS received 37 public comments
before the close of the comment period. Most of the comments received
do not focus on the limited scope of the rule, which only authorizes
ICE to serve bond related notices electronically to consenting
recipients. Rather, commenters expressed opposition to ICE's CeBONDS,
primarily in the context of confirming bond information and posting
payments electronically, and voiced concerns about the system's
reliability and accessibility. DHS considered all public comments
before issuing this final rule. A discussion of the public comments and
responses follows later in this preamble.
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\20\ Immigration Bond Notification, 88 FR 53358 (Aug. 08, 2023);
8 CFR 103.6(g)-(h).
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F. Changes From the Interim Final Rule
The IFR amended regulations to allow ICE to serve bond-related
notices (such as Form I-340, Form I-391, Form 71-042, or Form I-323)
electronically to obligors who consent to electronic delivery of
service; these notices may pertain to delivery, order of supervision,
or voluntary departure immigration bonds, such as bond breach or
cancellations, and other immigration bond related notices. 8 CFR
103.6(g)-(h). As discussed in the comment and response sections below
in this final rule, DHS has considered the input provided by commenters
in response to the IFR. The changes from the IFR amend typographical
errors, update terminology for accuracy, and restructure regulatory
text for clarity and consistency in 8 CFR 103.6(g) and 8 CFR 103.6(h).
This final rule introduces no substantive changes.
Technical and Clarifying Changes
In this final rule, DHS is updating the terms ``notice'' and
``notification,'' ``receipt'' to ``proof of service,'' and ``obligor''
to ``bond obligor.'' DHS is updating ``notification'' to ``notice,'' to
clarify the difference between the two. While the IFR used the terms
``notification'' and ``notice'' interchangeably, this final rule
provides clarity and differentiation between the terms.
``Notification'' refers to the email that alerts the obligor to log
into the CeBONDS system to view the bond notice. Notifications do not
include any substantive or personal information. ``Notice'' refers to
the forms related to bonds that are issued and served by ICE via
CeBONDS. Opening the notice in the ICE bond system will constitute
proof of service. Similarly, ``receipt'' is updated to ``proof of
service'' which better describes when an obligor opens a notice in
CeBONDS.
II. Discussion of Public Comments on the Interim Final Rule
A. Summary of Public Comments
DHS received 37 public comments from a variety of persons and
entities, including businesses, nonprofits, advocacy organizations, and
individual members of the public. DHS reviewed all the public comments
received in response to the IFR and addresses those comments in this
final rule. Commenters primarily expressed concern about CeBONDS's
technical issues, processing times, and potential implications on a
noncitizen's liberty. DHS addresses these issues in more detail below.
DHS reiterates that receiving bond-related notices electronically is
entirely voluntary and ICE will continue to send notices by mail if ICE
cannot confirm proof of service.
Several comments are concerned with technical issues related to
posting bond payments electronically and concerns on whether the in-
person payment option would remain available based on the promulgation
of the IFR. The IFR and this final rule authorizes ICE to
electronically serve immigration bond notices after a noncitizen has
been released from custody following a bond payment by the obligor.\21\
This final rule does not change the obligor's option to post bonds in-
person, nor the requirements of the obligor as listed in Form I-352.
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\21\ In instances where the noncitizen has been granted
voluntary departure by an IJ or the BIA, a noncitizen may not
necessarily be in detention and may be posting bond to satisfy the
requirements for the relief.
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Some commenters requested additional time for the public to
comment. DHS reviewed all the timely-filed public comments received in
response to the IFR and addressed relevant comments in this final rule,
grouped by subject. DHS received several comments on subjects unrelated
to electronic bond notices that are outside the scope of the IFR. DHS
has not individually responded to these comments but has summarized out
of scope comments and provided a general response.
B. Comments Expressing Support
Comment: Commenters expressed their appreciation for DHS's efforts
to improve the efficiency of the immigration bond process by
modernizing the bond payment system. One commenter stated, ``[i]f the
system in this interim rulemaking helps build and promote a fair and
efficient immigration process through equitable and impartial
monitoring and enforcement it would be beneficial to the public.'' This
commenter recommended that this rulemaking should be considered for
approval once the agency has reviewed all the public comments received.
Response: DHS appreciates the support from the commenters. DHS
seeks to make it easier for the public to connect with ICE and improve
customer satisfaction. Authorizing ICE to serve notices electronically
to consenting obligors may reduce processing times and decrease the
probability of lost or missing information. Specifically, serving
electronic immigration bond notices will likely increase efficiency and
reduce the cost of mail delivery by providing electronic transmission
of bond notices. DHS appreciates these
[[Page 539]]
commenters' support for the IFR and did not make any changes in this
final rule based on the comments.
C. Comments Expressing Opposition
Comment: The majority of commenters expressed general opposition to
the rule, including some comments that were outside the scope of this
rule. Some commenters stated that the CeBONDS system is inaccessible,
dysfunctional, and inconsistently implemented across ICE facilities.
Other commenters stated the rule imposes various hurdles to using
CeBONDS and that the lack of accessibility and transparency of CeBONDS
hinders the effectiveness of the system. Commenters stated that CeBONDS
needs to be user friendly, accessible, simple, and transparent.
Commenters suggested DHS narrow the issue of notifications until
CeBONDS accessibility and dysfunctional issues are addressed or defer
the rule, so the system does not further perpetuate these challenges.
Response: The IFR did not implement CeBONDS. Rather, the rule
allows ICE to serve bond notices (demand notices, bond breach, bond
cancellation, and other bond notices) electronically to obligors who
consent to receive electronic service, which is currently one of many
functions of CeBONDS. Electronic service may reduce burdens, cost, and
increase convenience to the public. Electronic notices provide
expedited delivery and improve recordkeeping by tracking when
notifications are sent and read. ICE will continue to make improvements
to CeBONDS to decrease any technical issues experienced by users.
D. Administrative Procedure Act (APA)
Comment: Commenters stated ICE failed to provide timely and
consistent information on its intent to fully transition to CeBONDS
prior to implementing the rule.\22\ Commenters pointed out that the IFR
stated ``ICE ERO is currently developing CeBONDS.'' See 88 FR at 53360.
One commenter stated that ICE did not provide the public with
sufficient notice and an opportunity to comment by setting the same
date for the rule's effective date and the deadline for public comment.
The commenter continued by stating this does not align with the APA
which ``typically requires agencies to give the public [g]eneral notice
of [a] proposed rulemaking by publication in the Federal Register, and
then to provide interested persons an opportunity to participate in the
rule making through submission of written data, views, or arguments
regarding the proposed rule.'' \23\ Numerous commenters requested DHS
provide more time for the public to review and comment on the rule and
its objectives, and then convene a public hearing.
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\22\ See 5 U.S.C. 553(b)-(c); see also, e.g., Pickus v. U.S. Bd.
of Parole, 507 F.2d 1107, 1113 (D.C. Cir. 1974) (inapplicability of
notice-and-comment requirement to agency actions `` `relating to
practice or procedure' means technical regulation of the form of
agency action and proceedings . . . [and] should not be deemed to
include any action which goes beyond formality and substantially
affects the rights of those over whom the agency exercises
authority'').
\23\ Dep't of Educ. v. Brown, 600 U.S. 551, 557-58 (2023).
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Response: The IFR and this final rule did not implement CeBONDS.
This rule only authorizes an additional optional procedure for ICE to
serve bond related notices (demand notices, bond breach, bond
cancellation, and other bond notices) to obligors who consent to
receive those notices electronically. See 8 CFR 103.6(g)-(h). 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 the IFR and this final rule are
procedural, notice and opportunity for public comment are not required
by the APA. See 5 U.S.C. 553(b)(A). DHS nevertheless invited the public
to comment on the IFR and considered all timely-filed comments
submitted during the 30-day public comment period.
DHS believes the 30-day comment period was sufficient to allow for
meaningful public input as evidenced by the 37 timely-filed public
comments received. The IFR stated that ``[c]omments 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.''
Commenters generally did not explain in their submissions what
additional issues they would raise during a longer comment period or
what issues would be deliberated during a public hearing after a longer
comment period, but the number of comments--as well as their breadth--
reflects an adequate consideration of issues during the comment period.
Additionally, commenters primarily focused on the CeBONDS system, its
capability and functionality, rather than the actual regulatory
amendments on electronic service. In short, there is no indication that
the comment period was insufficient.
Notably, the APA does not require a specific comment period length,
see 5 U.S.C. 553(b), (c), and although Executive Orders 12866 and 13563
recommend a comment period of at least 60 days, a 60-day period is not
required. DHS is not aware of any case law holding that a 30-day
comment period is categorically insufficient. Indeed, some courts have
found 30 days to be a reasonable comment period length. For example,
the D.C. Circuit has stated that, although a 30-day period is often the
``shortest'' period that will satisfy the APA, such a period is
generally ``sufficient for interested persons to meaningfully review a
proposed rule and provide informed comment,'' even when ``substantial
rule changes are proposed.'' Nat'l Lifeline Ass'n v. FCC, 921 F.3d
1102, 1117 (D.C. Cir. 2019) (citing Petry v. Block, 737 F.2d 1193, 1201
(D.C. Cir. 1984)). Here, because the IFR did not require a public
comment period under the APA and expanded service options for obligors,
DHS believes the 30-day comment period was sufficient for interested
persons to meaningfully review the rule and provide informed comment.
E. Privacy
Comment: Some commenters stated their preference to pay bonds in
person and receive bond notices via mail because they are concerned
about the security of their personal information. One commenter stated
ICE has not published a Privacy Impact Assessment (PIA) to address how
obligors' information entered into CeBONDS will be protected. The
commenter highlighted ICE website's claim that it had ``initiate[d] the
Bonds Management Program PIA in January 2023.'' \24\ However, the
commenter was unable to locate the PIA information and assumes that ICE
has not conducted a stand-alone PIA for CeBONDS. Further, the commenter
stated that the documents ICE claims to have updated regarding privacy
risks fail to indicate such updates. The commenter asserts the public
has not been informed about the privacy impact of ICE's collection of
information from obligors and ICE's statements about the updates are
misleading.
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\24\ U.S. Immigration and Customs Enforcement, Post a Bond,
<a href="https://www.ice.gov/detain/detention-management/bonds">https://www.ice.gov/detain/detention-management/bonds</a> (last visited
Sept. 6, 2023).
---------------------------------------------------------------------------
Response: Commenters' comments are focused on the obligor's
personal information entered in CeBONDS rather than the purpose of the
rule, which allows ICE to serve bond-related notices
[[Page 540]]
to obligors who consent to receive those notices electronically. See 8
CFR 103.6(g)-(h).
Prior to the deployment of CeBONDS in 2023, the Bond Management
Information System/Web Version (BMIS Web) \25\ and Bonds Online System
(eBONDS) PIA were updated to assess the privacy risks associated with
CeBONDS and to document ICE's privacy protections for the collection
and maintenance of information on noncitizens and obligors involved in
the processing and posting of immigration bonds.\26\ Separately, due to
the expansion of online bond posting capabilities, ICE initiated the
Bonds Management Program PIA in January 2023 and will provide the PIA
to the public once it is available.\27\
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\25\ U.S. Immigration and Customs Enforcement, Privacy Impact
Assessment Update for the Bond Management Information System (Jan.
19, 2011), <a href="https://www.dhs.gov/sites/default/files/publications/ice-pia-005-v2-bmis-web-2011.pdf">https://www.dhs.gov/sites/default/files/publications/ice-pia-005-v2-bmis-web-2011.pdf</a>.
\26\ U.S. Immigration and Customs Enforcement, Privacy Impact
Assessment Update for the Bonds Online System (eBONDS) Phase Two
(Jan. 24, 2013), <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>.
\27\ U.S. Immigration and Customs Enforcement, Post a Bond, What
steps has ICE taken to ensure CeBONDS provides data privacy and
security as part of its processes? (last updated Sept. 17, 2024),
<a href="https://www.ice.gov/detain/detention-management/bonds">https://www.ice.gov/detain/detention-management/bonds</a>.
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F. Consent to Electronic Service
Comment: Commenters stated their confusion regarding the option to
opt-in to receive electronic bond notifications. Commenters stated the
IFR implies obligors may choose to consent to receive notifications,
which contrasts with obligors' requirement to consent to receive
notifications as a prerequisite to use CeBONDS. One commenter stated
that state laws, rules, and regulations can differ on how individuals
``opt in or out'' of receiving electronic mail. Commenters urged ICE to
clearly convey to the public, obligors, and noncitizens the methods ICE
will use to provide notifications about noncitizens conditions of
release and what will constitute consent to electronic service.
Response: This rule authorizes ICE to serve bond related notices to
obligors who consent to receive those notices electronically. See 8 CFR
103.6(g)-(h). ICE will not utilize the electronic system to serve
notices to obligors who have not consented to receiving electronic
notices. As updates are made to the CeBONDS system, ICE will provide
further guidance to users. ICE will add specific information that
obligors may opt in to communicate electronically and consent to
electronic delivery of bond notices and any other bond-related notices
via CeBONDS and by electronic mail. Consent will mean that the obligor
agrees to check their CeBONDS account, alerts, messages, and associated
email to stay apprised of the important notices and information.
In instances where the obligor fails to open a notice
electronically after receiving the notification and the system cannot
confirm electronic proof of service, the CeBONDS system will generate a
new notice that will be sent via mail as required by the regulations.
If the obligor's address (mailing or email) changes after posting a
bond, the obligor must promptly update contact information in CeBONDS
or submit Form I-333, Obligor Change of Address, to ICE with the
obligor's new address.
As noted in the IFR and in this final rule, an obligor must agree
to receive bond related notices electronically. See 8 CFR 103.6(g)-(h).
The option to ``opt in'' to receive immigration bond related notices
does not vary from state to state. Federal regulations, specifically in
this rule, are not subject to state ``opt in'' laws or rules.
If the obligor does not wish to post a bond or receive bond notices
electronically, the obligor may still post the bond in-person at an ICE
office and receive the notice by mail. In these instances, contact the
nearest ICE office for guidance.
General service of electronic notifications or notices to the
noncitizen is outside the scope of this rule as this rule specifically
pertains to electronic service of bond notices to the obligors.
G. Proof of Electronic Service
Comment: Commenters stated the action of logging into CeBONDS
should not constitute proof of receipt of the notification and that
clicking a link or opening a document through CeBONDS does not
guarantee that the individual accessing the notice understands its
contents. Commenters explained CeBONDS can and does fail, logging
obligors out at random--regardless of whether the obligor has seen the
notice. Additionally, commenters stated the mechanism to validate
receipt of service is insufficient. One example raised by a commenter
outlined that, if an obligor used their work email address to log into
CeBONDS and later departs from that place of employment, there is no
way to validate receipt of the bond notice. Commenters expressed
concern and questioned how ICE will track unopened electronic
notifications in CeBONDS and verify users' email addresses.
Commenters requested ICE inform the public about how it intends to
track notifications and provide the public a meaningful chance to voice
its preferences, to ensure related accountability from ICE. Commenters
stated the IFR does not specify a timeline when ICE will reissue a bond
notification via mail to the CeBONDS users who do not open the
notification. Furthermore, the IFR does not state if ICE will take
action pending someone's receipt of paper-based notifications. One
commenter stated that DHS and ICE should provide clear procedures that
ensure notifications to CeBONDS users and confirm receipt of
notification prior to engaging in adverse actions towards the obligor
and noncitizen. Another commenter suggested adding a checkbox to the
confirmation message.
A commenter stated CeBONDS financially impacts obligors, as these
events can determine whether ICE will return funds paid as bonds. If an
obligor fails to receive timely notification of a breach, their
opportunity to appeal the bond breach determination is limited, which
may lead to the forfeiting of the bond amount.
Response: The ability to confirm delivery of electronic notices is
essential to this rule which authorizes ICE to serve electronic
notices. Importantly, an obligor merely logging into the CeBONDS
account in and of itself does not constitute proof of electronic
service. While some commenters voiced concerns about the technical
issues, such as the system logging obligors out at random, the obligors
can log back in to review these notices again at any time, as they will
continue to be available in their CeBONDS accounts. As described
further below, CeBONDS captures detailed information regarding the
actions executed through the system and the electronic process to
satisfy the requirements for electronic service. Electronic notices
(Form I-340, Form I-391, Form 71-042, or Form I-323) are sent to the
obligor's CeBONDS account. When the notices are sent to the obligor's
CeBONDS account, a separate email notification is generated and sent to
the obligor's email address on file to notify the obligor to log into
their CeBONDS account. ICE captures a timestamp of these actions in the
CeBONDS system--logging specifically the month, day, year, hour,
minute, and ante or post-meridiem when the notices are sent to the
obligor's CeBONDS account--e.g., ``Form I-340 Sent to Obligor.'' When
the obligor opens the notice in CeBONDS, the system will track the
action that the obligor has opened the notice--``Form I-340 Viewed by
Obligor''--and log the timestamp. This event constitutes the point in
time when the obligor received service of the notice. At each step of
this process, CeBONDS tracks the actions
[[Page 541]]
taken in the system by all users, including the actions of the obligor.
If the obligor does not open the notice, a new notice will be sent
via mail to the last known address. See 8 CFR 103.6(g) and (h)
(specifying the backup method of service as certified mail for demand
notices and ordinary mail for breach, bond cancellation, and other bond
notices). During this time, when the notice is sent electronically and
then via mail, generally, there is no impact to the noncitizen, as ICE
will not take any custody action until service is completed and there
is proof of service. Generally, ICE will confirm proof of service
electronically or via certified mail for demand notices prior to taking
any actions against the noncitizen. If the obligor's address (mailing
or email) changes after posting a bond, the obligor must promptly
update their address information in CeBONDS or submit Form I-333,
Obligor Change of Address, to ICE with the obligor's new address. If
the obligor does not update their address and contact information, ICE
will use the last updated address to serve the notice via mail.
To the extent that the commenters express concerns that the
information about this timeline was not set forth in detail in the IFR,
ICE did not provide a specific timeline for when it will reissue a bond
notice via mail because ICE is continuously improving the system and
implementing updates to better serve the public needs and improve
communication. Therefore, as ICE seeks to implement various updates,
this may impact the timeframe when a notice is mailed to the obligor.
As technology improves, or related updates are made to CeBONDS, the
information on the ICE website will also be updated for stakeholders'
awareness. ICE notes, however, that the IFR specified that if ICE could
not confirm proof of service of electronic notice, ICE would reissue
the notices by an appropriate mailing method. 8 CFR 103.6(g)-(h).
Additionally, as stated throughout this rule, if an obligor receives a
notice electronically or by mail, and does not understand the content
of the notice, the obligor can contact the nearest ICE office for
guidance irrespective of how the notice was served.
There is no data to suggest that CeBONDS will result in an increase
in bond breaches. DHS believes the use of electronic notices may
improve notification delivery time because these specific bond notices
cannot be lost through physical mail, and obligors will receive a
notification immediately via electronic means. Furthermore, obligors
have the option to print or view the notice in CeBONDS at any time.
This may reduce the possibility that an obligor will not be able to
appeal a bond breach determination in time, because there is less
likelihood of potential delays or errors associated with electronic
mail service which would otherwise lead to the forfeiting of the bond
amount.
H. Governmental Actions and Interference With Constitutionally
Protected Property Rights
Comment: Commenters raised concerns that the rule implicates
governmental takings of private property. A commenter indicated that
the inefficiencies and delays caused by CeBONDS during the electronic
payment process impacted property interests of the detained noncitizens
and the obligors' bond funds. Another commenter stated that CeBONDS
users' inability to access information through the system could result
in governmental takings of bond payments. As such, the commenter
disagreed with DHS' determination that the rule did not cause a taking
of private property or have taking implications under Executive Order
12630, Governmental Actions and Interference with Constitutionality
Protected Property Rights. Specifically, a commenter pointed that
CeBONDS financially impacts obligors, as the bond notices served
electronically are associated with events that can determine whether
ICE will return the paid bond funds. If obligors fail to receive timely
bond notices, their appeal rights may be affected for breach notices,
which could lead to the forfeiting of paid bonds. It could also lead to
obligors not requesting a refund of the paid bond amounts. The
commenter stated that ``the potential increases in the Breached Bond
Discretionary Fund (BBDF) are linked directly to the prospect of
expanding immigration detention bed space, a system with a record of
abuses and medical neglect.'' Furthermore, the commenter referenced a
report indicating that ICE held more than $200 million in unclaimed
bond funds in 2018.\28\
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\28\ Stanford Law School Immigrants' Rights Clinic et al.,
Following the Money: New Information about the Federal Government's
Billion Dollar Immigration Detention and Bond Operations (May 9,
2019), <a href="https://law.stanford.edu/publications/following-the-money-new-information-about-the-federal-governments-billion-dollar-immigration-detention-and-bond-operations/">https://law.stanford.edu/publications/following-the-money-new-information-about-the-federal-governments-billion-dollar-immigration-detention-and-bond-operations/</a>.
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Response: DHS does not agree with commenters' concerns that this
rule would lead to the taking of private property or have taking
implications under Executive Order 12630. This rule narrowly provides a
regulatory framework that allows ICE to serve certain bond notices
electronically for obligors who consent to electronic service. See 8
CFR 103.6(g)-(h). To confirm proof of service of an electronic bond
notice, the system captures the exact date and time that the notices
were opened. Notably, the rule provides safeguards in instances where
electronic service is not confirmed. ICE must effectuate service via
mail, which would be the equivalent method of service for an obligor
who opts out of electronic service. Thus, an obligor who consented to
electronic service would be in the same procedural posture as an
obligor who opts to receive service by mail, as they would have the
same due process rights and appellate opportunities. Accordingly, the
rule itself would not lead to any changes in the course of action that
would normally follow after the bond notices have been served by mail.
In this aspect, the rule would have no impact on property rights nor
implications of any governmental takings.
There is no data to suggest that CeBONDS will result in an increase
in bond breaches. DHS believes the use of electronic service may
improve delivery time because these specific bond notices cannot be
lost through physical mail, and obligors will receive a notification
immediately via electronic means. This benefit is expected to reduce
the likelihood that an obligor will be unable to appeal a bond breach
determination in time, which would otherwise lead to the forfeiting of
the bond amount.
DHS appreciates the concerns raised by the commenters. The IFR and
this final rule do not impact an individuals' ability to receive
notices traditionally through the U.S. Postal Service, but rather
authorizes ICE to issue bond-related notices to obligors electronically
should obligors consent to receive them. That said, DHS believes that
authorizing this electronic system will improve delivery time, thereby
reducing the likelihood that an obligor will be unable to appeal a bond
breach determination, which may lead to the forfeiting of the bond
amount.
I. Cost Analysis
Comment: A commenter indicated that ICE's cost-analysis for this
rule is deficient because the cost-analysis fails to address at least
two critical issues. See 88 FR at 53 366-69. First, the cost-analysis
is silent about any investment by ICE to ensure that the proposed
framework for notifications to CeBONDS users will comply with the
requirements of the Rehabilitation Act
[[Page 542]]
of 1973.\29\ Second, the cost-analysis does not include any costs that
the notification-scheme may pose to CeBONDS users. The commenter urges
ICE to clarify to the public whether CeBONDS users may be subject to
any such costs. A commenter stated CeBONDS financially impacts
obligors, as these events can determine whether ICE will return funds
paid as bonds. If an obligor fails to receive timely notification of a
breach, their opportunity to appeal the bond breach determination is
limited, which may lead to the forfeiting of the bond amount.
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\29\ Rehabilitation Act of 1973, 29 U.S.C. 701 et seq.
---------------------------------------------------------------------------
One commenter stated that ICE facilities require travel tickets for
detained noncitizens before being released but if the noncitizen is not
released on the scheduled day, the obligors would incur additional
travel costs with having to travel to the ICE facility again and
prolong the noncitizen's detention.
Response: Regarding the first point, section 508 of the
Rehabilitation Act of 1973 requires that when Federal departments and
agencies develop, procure, maintain, or use electronic and information
technology, they ensure that the electronic and information technology
is accessible to individuals with disabilities who are Federal
employees, applicants for employment, or members of the public. ICE
ensures policies meet 508 compliances. ICE accessibility policies and
procedures ensure all employees, contractors, and members of the
public, regardless of any disability, have access to, and use of, all
ICE Information and Communication Technology. CeBONDS, which utilizes
electronic bond notifications outlined in this final rule, was tested
by DHS for section 508 compliance on July 17, 2023, and found to be
compliant.\30\
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\30\ See ICE Directive 8014.1, Section 508 Accessibility (Mar.
3, 2023), <a href="https://www.ice.gov/doclib/foia/policy/8014.1_Section508_Accessibility.pdf">https://www.ice.gov/doclib/foia/policy/8014.1_Section508_Accessibility.pdf</a>.
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To the extent that the commenter references travel costs associated
with the noncitizen's release, this comment pertains to the costs
associated with posting a bond. It does not pertain to costs related to
implementing this rule for electronic service of bond notices, which
are applicable at later stages after the noncitizen has already been
released on bond.
The IFR authorized ICE to serve bond-related notices electronically
to obligors who consent to receiving those notices electronically. DHS
only accounted for the impacts to create an online account and noted
that there can be additional technology-related costs for obligors
without access to the internet. Obligors who consent to electronic
service of notices will receive those notices without charge.
Finally, DHS believes that authorizing electronic service will
improve the timely delivery of notices, thereby reducing the likelihood
that an obligor will be unable to appeal a bond breach determination,
which may lead to the forfeiting of the bond amount.
J. Family Impact
Comment: Commenters stated DHS failed to examine the rule's
implications on the mental, financial, and well-being of families.
Specifically, a commenter stated DHS did not appraise the Treasury and
General Government Appropriations Act, in which agencies assess the
impact of proposed agency actions on the well-being of a family.\31\
The commenter stated that ICE must provide notifications to CeBONDS
users that contain critical information about the posting or status of
an immigration bond. By its very nature, such information, and its
present inaccessibility to many CeBONDS users, stand to have
significant impacts on any family within the United States with a
relative who is subject to an immigration bond. One commenter stated
that ICE should explain why it believes this rule would not impact the
well-being of a family.
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\31\ Commenter cited to Actions--H.R.4328--105th Congress (1997-
1998): Omnibus Consolidated and Emergency Supplemental
Appropriations Act, 1999, H.R.4328, 105th Cong. (1998), <a href="https://www.congress.gov/bill/105th-congress/house-bill/4328/actions">https://www.congress.gov/bill/105th-congress/house-bill/4328/actions</a>.
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Response: DHS concluded that the rule does not have an impact on
family-being within the meaning of section 654 of the Treasury and
General Government Appropriations Act of 1999. However, the comments do
not focus on the rule which allows ICE the ability to serve electronic
bond notices to obligors who opt-in to receive those notifications. The
rule allows obligors to consent to electronic service, at their
discretion, and provides a backup procedure of service by mail. See 8
CFR 103.6(g)-(h).
For obligors who consent to electronic notifications, they will
receive an alert to log into their CeBONDS account. No personal
information is included in the notification, but it simply alerts the
obligor to log into CeBONDS. Electronic notices are served to only
obligors who consent to receive those notifications. As discussed in
Section II., G. Proof of Service, CeBONDS incorporates a timestamp when
an obligor views the notice in the system. Viewing of the notice by the
obligor constitutes service of the notice. At each step of this
process, CeBONDS tracks all user actions taken in the system, including
the actions of the obligor.
If the obligor does not open the notice, then DHS cannot confirm
proof of service of the notice. Therefore, a new notice will be sent
via mail to the last known address. See 8 CFR 103.6(g)-(h). During this
time, when the notice is served electronically and then via mail, DHS
does not anticipate that there will be any impact to the noncitizen.
Given the narrow regulatory framework for this rule and the
safeguards in place, DHS does not believe that the rule pertaining to
an alternate method of service would create any adverse impact on
families. There is no data indicating that there is a correlation
between adding another method of service and any negative effects to
families. DHS is making no changes to its assessment of the impact of
the regulation on families in this final rule.
K. Inequality and Inaccessibility
1. General
Comment: Commenters raised concerns that CeBONDS disproportionately
impacts vulnerable populations including those with limited English
proficiency, mental impairments or competency issues, limited
technological literacy, physical disabilities, health problems or need
of medical attention, people of color, indigenous groups, low-income
and -resources, and limited access to computers and internet, financial
establishments, and others. Commenters explained that using CeBONDS
specifically burdens the populations who have limited English
proficiency, lack the access to computers with internet, or lack online
bank accounts. The commenters state that these burdens perpetuate
inequalities toward those with low-incomes and increase racial
disparities and injustices because most detained noncitizens are low-
income and people of color. The commenters expressed that lack of
income and knowledge of the CeBONDS system will impede noncitizens from
receiving official immigration bond documents. Commenters suggested ICE
preserve the option of posting immigration bonds in person to
facilitate payment accessibility for everyone, irrespective of race or
income level.
Response: DHS recognizes there may be difficulties faced by
vulnerable populations navigating the immigration process due to
various factors. This rule
[[Page 543]]
authorizes ICE to serve bond-related notices electronically to obligors
who consent to electronic delivery of service and is not dependent on
how CeBONDS operates for posting bonds. The IFR and this final rule
provide a regulatory framework for obligors who consent to electronic
service, at their discretion, and provide a backup procedure of service
by mail. See 8 CFR 103.6(g)-(h). The option to receive electronic
service is offered to all obligors and does not change the existing
process of in-person bond payment and service of bond notices. The
scope of this rule is limited to electronic service of bond notices.
While the rule does not implement CeBONDS, ICE will utilize this
immigration bond delivery system to effectuate service to those
obligors who consent to electronic service.
DHS designed CeBONDS to alleviate various burdens on the public
such as posting bonds at an ICE facility, provide bond information in
real time, increase record keeping and tracking, and expediate delivery
of immigration bond notices. CeBONDS serves as an additional
alternative method for conducting transactions electronically to better
serve the needs of obligors who face accessibility barriers and
resource constraints and does not replace the current existing process
for posting bonds and receiving notices.
The Coronavirus disease (COVID-19) pandemic prompted a shift in
certain ICE business processes and highlighted the need to develop
online capabilities to mitigate the risks associated with person-to-
person contact, especially for those with vulnerable health risks.
CeBONDS provides the public with the online capability to make requests
for bond information, update contact information, upload necessary
documents to verify eligibility to post the bond, post cash immigration
bonds electronically for eligible detained noncitizens, and receive
bond notices electronically.
Obligors who are concerned with accessibility or other factors
continue to have the option to post bonds in-person and receive notices
by mail. As elaborated in the sections below, DHS includes additional
options and alternatives for those with limited means and
accessibility. Any obligor who has a question about posting a bond in
person can contact the nearest ICE office for guidance. ICE will
continue to work with obligors who want to pay bonds at an ICE office
and provide obligors assistance in-person. ICE offices have access to
an ICE-wide 24/7 language services contract for interpretation (oral),
translation (written), and transcription (audio to text).\32\
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\32\ U.S. Immigration and Customs Enforcement, Language Access
Information and Resources (last updated May 7, 2024), <a href="https://www.ice.gov/detain/language-access">https://www.ice.gov/detain/language-access</a>.
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Moreover, DHS has Department-wide policy directives to ensure
nondiscrimination for individuals with disabilities served by DHS-
conducted programs and activities. Consistent with the requirements of
the Rehabilitation Act of 1973 and Department of Homeland Security
Directives, CeBONDS was designed to be section 508 compliant. If the
format of any material on its website or system interferes with an
individual's ability to access the information due to an issue with
accessibility caused by a disability as defined in the Rehabilitation
Act, the user can contact the ICE Section 508 Coordinator for
assistance.\33\
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\33\ U.S. Immigration and Customs Enforcement, Site Policies
(last updated Aug. 6, 2024), <a href="https://www.ice.gov/site-policies#accessibility">https://www.ice.gov/site-policies#accessibility</a>.
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2. Language Barrier
Comment: Commenters stated that noncitizens and obligors have
difficulty navigating CeBONDS due to language barriers. Commenters
stated the ICE landing page \34\ is only accessible in English and
Spanish and therefore deters payment from those with limited English or
Spanish proficiency or may force obligors to rely on third parties for
payment putting them at risk of fraud.
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\34\ U.S. Immigration and Customs Enforcement, Post a Bond,
Frequently Asked Questions, How to Pay a Bond?, <a href="https://www.ice.gov/detain/detention-management/bonds">https://www.ice.gov/detain/detention-management/bonds</a> (last visited Aug. 25, 2023).
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Commenters stated the failure to provide translation into the
languages of greatest frequency violates DHS's obligations to provide
equal access to speakers of other languages and suggests DHS increase
accessibility. Another commenter urged DHS to include a requirement
that DHS examine the feasibility of translating the website into
languages of greatest frequency and ensure that a mechanism exists for
people with limited English proficiency to pay bonds in person.
Response: DHS recognizes the importance of being able to
communicate effectively with individuals, including those with Limited
English Proficiency (LEP). However, the rule authorizes an additional
procedure for ICE to serve bond related notices (demand notices, bond
breach, bond cancellation, and other bond notices) to obligors who
consent to receive those notices electronically. This regulation does
not implement CeBONDS. Therefore, if CeBONDS is not a viable option,
LEP individuals continue to have the option to visit an ICE office for
assistance to post a bond.
Currently the CeBONDS landing page is available in English and
Spanish.\35\ From the Spanish landing page, obligors are able to select
their preferred language from the drop-down menu in the web
browser.\36\ Furthermore, ICE offices have access to an ICE-wide 24/7
language services contract for interpretation and translation, and
guidance and best practices materials for identifying LEP individuals
and their primary language to secure the necessary interpretation and
translation services for them. ICE offices are pursuing several
initiatives to help promote communication with LEP individuals
encountered at ICE offices functions.\37\
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\35\ U.S. Immigration and Customs Enforcement, Pagar una fianza
ICE (last updated Sept. 17, 2024), <a href="https://www.ice.gov/es/fianzas">https://www.ice.gov/es/fianzas</a>.
\36\ Is CeBONDS accessible to people with limited English
proficiency?, supra note 36.
\37\ U.S. Immigration and Customs Enforcement, Language Access
Plan (June 14, 2015), <a href="https://www.dhs.gov/sites/default/files/publications/ICE%20Language%20Access%20Plan.pdf">https://www.dhs.gov/sites/default/files/publications/ICE%20Language%20Access%20Plan.pdf</a>.
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DHS is striving to improve CeBONDS' accessibility for those with
language barriers and limited resources by providing an alternative
language on its website, instructions to select their preferred
language through their web browser, and equipping the offices with
language access programs to communicate with obligors.\38\ Consistent
with Executive Order 13166, Improving Access to Services for Persons
with Limited English Proficiency, and DHS \39\ and ICE's Language
Access Plan,\40\ DHS will continue to assess and consider ways to
enhance the system to expand accessibility, including the possibility
of adding languages.
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\38\ Id.
\39\ U.S. Department of Homeland Security, Language Access at
the Department of Homeland Security (last updated Feb. 28, 2024),
<a href="https://www.dhs.gov/language-access">https://www.dhs.gov/language-access</a>.
\40\ Language Access Plan, supra note 39.
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Although not all ICE forms are translated into languages most
frequently used,\41\ ICE is committed to ensuring that external LEP
stakeholders (including members of the public who seek access to
programs, and noncitizens who are subject to ICE
[[Page 544]]
enforcement actions and/or are in ICE custody) have meaningful access
to its programs, services, and activities by providing quality language
assistance services in a timely manner. ICE will consider processes for
enhancing language access services for programs and activities that
include external stakeholders, provided that such processes do not
unduly burden the Agency mission.
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\41\ To the extent that the commenter believes that DHS may be
violating its obligations to provide equal access to speakers of
other languages, DHS notes that Executive Order 13166, Improving
Access to Services for Persons with Limited English Proficiency, 65
FR 50121 (Aug. 11, 2000), ``does not create any right or benefit,
substantive or procedural, enforceable at law or equity by a party
against the United States, its agencies, its officers or employees,
or any person.'' Id. at 50121-22. The commenter has not provided any
specific citations to show that CeBONDS violates any Federal law.
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3. Bank Account
Comment: Commenters stated that obligors are financially limited
and lack access to banking services (whether managed or traditional),
which increases the difficulty to post bonds and prolongs detention.
Some commenters stated, without evidence, that over 63 million adults
in the United States have limited to no access to bank accounts and
services and therefore cannot use web applications like CeBONDS.
Commenters suggested DHS ensure that the process of posting bonds does
not create financial hardship on obligors or noncitizens and consider
that there are almost six million U.S. households in which no adult has
a bank account.\42\
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\42\ Federal Deposit Insurance Corporation, 2021 FDIC National
Survey of Unbanked and Underbanked Households, <a href="https://www.fdic.gov/analysis/household-survey/index.html">https://www.fdic.gov/analysis/household-survey/index.html</a> (last visited Aug. 25, 2023).
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Commenters stated the lack of payment options impedes equal access
to pay bonds and creates a two-tiered system: obligors with financial
resources who can post bonds quickly and obligors without resources
that will experience delays, denials, and confusion. Another commenter
stated the coronavirus pandemic highlighted the inequalities and
differences in access to things society otherwise deemed ubiquitous,
such as the internet and bank accounts.
Another commenter asserted that CeBONDS has associated higher fees
than paying a bond with a money order.
Commenters stated their confusion in learning the components of
bank wiring systems and routing numbers. To post bonds, obligors can
use either Fedwire, a system for the electronic transfer of funds
operated by the Federal Reserve Bank; or the Automated Clearing House
(ACH), an electronic network of banks that allows the transfer of money
from one account to the other.\43\ These payment options require
identification, access to a computer or smartphone with internet
capabilities, and access to a financial institution. One commenter
stated using ACH was complicated and prolonged the process almost two
weeks compared to paying the bond at an ICE facility. Another commenter
stated the ICE's Bond Management Handbook \44\ claims obligors can pay
bonds in cash, i.e., currency, money order, certified check, or
cashier's check which does not require a bank account. The commenter
added that obligors may prefer to pay bonds with cash at an ICE office
instead of going to a bank and dealing with the Fedwire or ACH systems.
Another commenter stated, without evidence, that most obligors do not
have access to a local bank or bank accounts (managed or traditional)
which increases the difficulty to post bonds and prolongs detention.
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\43\ U.S. Immigration and Customs Enforcement, Post a Bond,
Frequently Asked Questions, How can I pay a bond if I have little to
no access to banking services, internet, or computing devices?,
<a href="https://www.ice.gov/detain/detention-management/bonds">https://www.ice.gov/detain/detention-management/bonds</a> (last visited
on Aug. 25, 2023).
\44\ U.S. Immigration and Customs Enforcement, Enforcement and
Removal Operations, Bond Management Handbook, 23 (Aug. 19, 2014),
<a href="https://www.ice.gov/doclib/foia/dro_policy_memos/eroBondManagementHandbook2018-ICFO-31476.pdf">https://www.ice.gov/doclib/foia/dro_policy_memos/eroBondManagementHandbook2018-ICFO-31476.pdf</a>.
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Another commenter suggested CeBONDS accept other payment methods
that do not require a bank account.
Response: Commenters' comments are specific to payment of bonds
rather than the authorization of ICE to serve bond notices to obligors
who consent to receive those notices electronically.
ICE will continue to work with obligors who walk into an ICE office
to post bonds. Obligors who post bonds at an ICE office are not
required to have access to banking services in order to post bonds on
behalf of noncitizens. While cash is not accepted at an ICE office,
obligors can post bonds using a cashier's check or money order which
can be acquired without a bank account. Furthermore, money orders can
be purchased in places other than financial entities. Nevertheless,
this rule does not impact or change the current method of payment,
process of payment, or acceptable forms of payment. This rule focuses
on electronic service of bond notices to consenting obligors.
Obligors who prefer to post a bond using CeBONDS have the option to
use either Fedwire or an ACH to post an immigration bond, both of which
charge for the use of service, with fees ranging from $0.20 to $1.50
per transaction.\45\ Separately, there are no fees associated with the
use of the CeBONDS system.
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\45\ Federal Reserve Bank Services, FedNow Service 2024 Fee
Schedule, <a href="http://www.frbservices.org/resources/fees/fednow-2024">www.frbservices.org/resources/fees/fednow-2024</a> (last
visited July 24, 2024).
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Obligors without access to banking services may use an immigration
bond company to post a bond or work with community-based organizations
across the country that assist with immigration bonds.\46\
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\46\ U.S. Immigration and Customs Enforcement, Post a Bond,
Frequently Asked Questions, How can I pay a bond if I have little to
no access to banking services, internet, or computing devices? (last
updated Sept. 17, 2024), <a href="https://www.ice.gov/detain/detention-management/bonds">https://www.ice.gov/detain/detention-management/bonds</a>.
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4. Computer and Internet
Comment: A majority of commenters stated that DHS is unreasonable
and should not assume obligors and noncitizens have access to
computers, smart phones, etc., with reliable internet especially for
people of color and low-income communities. Although the administration
pushes to expand internet access, a large majority of people still do
not have internet access. Commenters stated over 42 million people
across the United States lack access to broadband and access to
computers varies widely according to income levels. Commenters stated
that obligors and noncitizens do not have routine or readily available
computers or the internet to check emails. This mechanism falls short
of meaningful access to important information.
A commenter stated obligors with limited financial resources may
rely on public libraries for computer and internet access to use
CeBONDS. Another commenter indicated the struggles of the U.S. public
library system and the movement to increase reliance on technology when
technological access facilitated through public libraries is decreasing
across the country is terribly timed.
One commenter requested clarification if the bond documents are
electronic, how will obligors receive those notifications and documents
without these resources? Commenters suggested DHS ensure bond payments
be completed in person and require ICE to accept in-person payments.
Response: DHS does not expect this rule to prevent any individual
from paying an immigration bond because the rule pertains to ICE's
ability to send electronic bond notices to obligors who consent to
receive those notifications.
DHS assessed the impacts to the affected populations, and
considered whether bond obligors would face technology costs to utilize
these services. There are a variety of means by which obligors can
access internet services to receive electronic notifications, including
the use of smart phones, personal computers, or community services that
can provide those services. The cost of these are either low or no-
cost, such as the use of libraries or free Wi-Fi services which are
[[Page 545]]
publicly available across the United States.
The use of electronic service is voluntary. If the obligor does not
open the notice in CeBONDS, a new notice will be sent via certified
mail for demand notices and via ordinary mail for any other bond-
related notice pertaining to this rule ICE does not expect this rule to
prevent any obligors from paying immigration bonds.
L. Detention
1. Prolonged Detention
Comment: Commenters raised concerns of prolonged detention for
noncitizens who are granted bonds because CeBONDS lacks up-to-date
information. Commenters stated that CeBONDS take days or weeks to
process bond payments--making the release of a noncitizen unpredictable
compared to in-person payment which are processed the same day along
with the release of the noncitizen. Commenters stated that CeBONDS
prolongs a noncitizen's release because payments are only accepted
between 9 a.m. and 3 p.m. in the time zone of the facility where the
noncitizen is detained.
Another commenter asserted that ICE developed a one-size-fits-all
approach to an issue that should be tailored to the needs of those who
pay (often thousands of dollars) to secure the liberty of those
detained.
Some commenters described the impact of prolonged detention on the
noncitizen's mental health, finances, and families without providing
data. A commenter stated that noncitizens are losing large periods of
their lives being detained in prison which makes it harder for the
noncitizen to reintegrate into society. The commenter wrote that
incarcerated individuals experience trauma from the prison system,
other inmates, and the correctional officers, due to incredibly
inhumane treatment.
Response: The rule authorizes ICE to serve bond-related notices
(ICE Form I-340, ICE Form I-391, ICE Form 71-042, or ICE Form I-323)
electronically to obligors, who consent to electronic service, that
pertain to delivery, order of supervision, or voluntary departure
immigration bonds, such as bond breach or cancellations, and other
immigration bond related notices. See 8 CFR 103.6(g)-(h).
Bond-related notices applicable to this rule are issued to the
obligor months or years after the bond was posted and when the
noncitizen is not in custody. Any correlation between the posting of
bonds via CeBONDS and release dates, if applicable, is expected to be
de minimis. Bond-related notices to which this rule applies are issued
to obligors after the bond has been accepted by ICE and the noncitizen
is not in custody. When the obligor starts the process of posting a
bond, there has already been a custody determination. ICE will review
the bond to confirm the bond matches the custody determination and
verify nothing prevents the bond from being posted. Additionally, ICE
must verify the funds have been transferred to ICE for the bond amount.
The process to notify the detention facility after a bond is approved
is the same for all bond posting methods (in-person, eBONDS, CeBONDS)
and is not the type of notice that is encompassed under the regulations
at 8 CFR 103.6(g)-(h).
If the obligor does not open the notice, a new notice will be sent
via mail to the obligor's last known address. See 8 CFR 103.6(g)-(h).
During this time, when the notice is served electronically and later
via mail, there is no impact to the noncitizen. Generally, ICE will
confirm proof of service electronically or via certified mail for
demand notices prior to taking any actions.
CeBONDS is updated with information in real time during the bond
posting process. Since CeBONDS was deployed, about 10,537 bonds have
posted. Of those posted bonds, less than 1 percent, or 680 posted
bonds, had release dates of 2 or more days after a bond was posted.
More than 99 percent, or more than 9,850 posted bonds, had release
dates within 2 days. Based on this information, there is little
evidence that the use of CeBONDS results in ``days or weeks'' of delay.
DHS will continue to make improvements to CeBONDS and other sites to
decrease technical issues experienced.
2. Impact on Proceedings
Comment: A commenter indicated that DHS' shift to electronic
notifications through CeBONDS, a system that is flawed and still under
development, would undermine the liberty interests of noncitizens
eligible for release from detention and increase the number of cases on
the immigration court's detained docket. The commenter noted that the
bond notifications could impact the outcome of removal proceedings for
individuals released on bond, including instances where the notices
inform obligors to bring the noncitizen to important appointments, but
the deficiencies in service result in a noncitizen's failure to appear.
Response: There is no indication that this rule on electronic
service of certain limited bond notices would impact removal
proceedings or the custody status after a noncitizen has been released.
This rule provides a regulatory framework to allow ICE to serve certain
bond notices electronically for obligors who consent to electronic
service. Under the rule, if the electronic notification system fails,
the obligor would receive service by mail, which would be the
equivalent method of service for an obligor who opts out of electronic
service. Given the safeguards, the rule itself would not lead to any
changes on the course of action that would normally follow when the
bond notifications have been served by mail. An obligor who consents to
electronic service would be in the same procedural posture as an
obligor who opts to receive service by mail, as they would have the
same due process rights and appellate opportunities. In this aspect,
there is no correlation between electronic service of bond notices and
a noncitizen's removal proceeding or custody status.
DHS believes that the use of electronic notices could potentially
improve notification delivery time because these specific bond notices
cannot be lost through physical mail and service via electronic means
is instantly effectuated. As described in Section II.G., Proof of
Service, the system is designed to capture the date and time of the
actions taken to effectuate electronic service--namely, when the
notification is sent and when the notice is opened by the obligor.
Thus, electronic notices could improve the likelihood of a noncitizens'
appearance at ICE appointments and court appearances and reduce the
likelihood that an obligor will be unable to appeal a bond breach
determination in time.
M. CeBONDS Instructions (In-Person and Online)
Comment: Commenters stated the inconsistent information and lack of
guidance provided by DHS and on the CeBONDS web page complicate an
already complex and difficult process for obligors to pay a bond for
the release of a noncitizen. Obligors are subjected to inconsistent
policies and practices at offices which hinder their ability to use
CeBONDS.
Commenters expressed that obligors may not understand whether there
is an option to pay in person and urge DHS and ICE to clarify,
publicize, and enforce this option. Commenters stated that CeBONDS was
deployed without notice or guidance to the public or proper training to
ICE staff which has caused a multitude of problems. Commenters stated
that detention centers are operating under arbitrary
[[Page 546]]
rules, taking up to several days to process bonds. One commenter
described being asked to provide business cards and authorization
letters, which are not qualifying documents. Another commenter
experienced the inability of the ICE staff to provide next steps after
ICE deemed a noncitizen ``not releasable'' despite the existence of a
bond order, slow email responses from the general Helpdesk, and slow
response times from local ICE offices processing bonds because bond
processing is still constrained to specific local business hours.
Commenters stated that ICE employees are unfamiliar with the
CeBONDS and unable to answer routine questions or provide crucial
information such as where the bond request is being handled. One
commenter stated ICE explained that bond requests were handled out of
state, making it more difficult to obtain contact information, and
suggested the commenter to wait until the next day, delaying release.
Commenters stated the need to make several phone calls or emails to
reach an ICE employee who was able to answer any bond-related
questions.
Commenters requested all public facing materials and web content
provide consistent guidance, explicitly state what factors are
considered when determining if bonds can be paid in person, and allow
obligors the option to pay bonds in person at ICE facilities.
Response: Commenters' comments focus on using CeBONDS and public
information on posting bonds. However, the purpose of the rule is to
authorize ICE to serve bond-related notices electronically to obligors
who consent to receive electronic bond related notices. See 8 CFR
103.6(g)-(h).
Prior to the deployment and implementation of CeBONDS, all ICE
staff at ICE offices processing bonds were provided training on the
system.
CeBONDS provides an online capability for bond obligors to request
bond information and post cash immigration bonds for detained
noncitizens determined by the IJ or ICE to be eligible for release on
bond. The process and procedures ICE officials utilize to verify an
obligor's eligibility to post a bond, to approve the bond and payment,
and to release the noncitizen from ICE custody are the same for bonds
posted in CeBONDS, eBONDS, and walking into an ICE office.
The ICE website provides a video tutorial on using CeBONDS, a
section on frequently asked questions, and categorically lists
acceptable documents applicable to the obligor.\47\
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\47\ U.S. Immigration and Customs Enforcement, Post a Bond (last
updated Sept. 17, 2024), <a href="https://www.ice.gov/detain/detention-management/bonds">https://www.ice.gov/detain/detention-management/bonds</a>.
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As listed on the ICE website, an obligor must provide at least one
(1) document to ICE from the applicable category below.\48\
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\48\ U.S. Immigration and Customs Enforcement, Post a Bond (last
updated Sept. 17, 2024), <a href="https://www.ice.gov/detain/detention-management/bonds">https://www.ice.gov/detain/detention-management/bonds</a>.
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U.S. Citizen
<bullet> U.S. Passport
<bullet> U.S. Birth Certificate
<bullet> U.S. Citizen Born Abroad Document
<bullet> USCIS Naturalization Certificate
<bullet> State-issued Driver's License (only REAL ID Card)
<bullet> State-issued ID Card (only REAL ID Card)
<bullet> Military Identification Card
Legal Permanent Resident (LPR)
<bullet> Permanent Resident Card (commonly known as a ``Green Card'')
<bullet> Military Identification Card
Non-Profit Organization
<bullet> IRS Letter 947--(Letter of Determination)
<bullet> SS4 IRS Notification Letter (Employer identification number
[EIN] approval letter)
<bullet> Letter of authorization from the non-profit for
representative/obligor posting the bond
<bullet> Representative's identification
Law Firms
<bullet> SS4 IRS Notification Letter (Employer identification number
[EIN] approval letter)
<bullet> Letter of authorization from the law firm for representative/
obligor posting the bond
<bullet> Representative's identification
Noncitizen Posting a Voluntary Departure (VD) or Order of Supervision
Bond
<bullet> Form I-862, Notice to Appear
<bullet> VD Order (for VD Bond)
<bullet> IJ Order (for Order of Supervision Bond)
<bullet> ICE Form I-220B (Order of Supervision)
<bullet> Form I-765--Employment Authorization Document (EAD)
ICE continues to allow obligors to post a bond in person at the
appropriate ICE office. ICE will continue to work with obligors who
want to pay bonds in person at an ICE office. DHS continues to work to
improve the system and the process but makes no changes to the rule in
response to these comments.
N. Technical Issues
Comment: Commenters stated that CeBONDS has numerous technical
issues, and frequently crashes, which prevents payment and creates
uncertainty whether the request or system failed. Commenters stated
CeBONDS relies on human approvals at every stage of the bond-posting
process, which results in lengthy wait times, or worse, the denial or
failure of bond-posting requests. A commenter stated their payment was
not instantaneous and waited over four hours for ICE to accept and
process the bond request. Commenters stated they did not receive any
information such as confirmation, receipt of payment, or status update
while waiting for ICE to accept and process the bond request.
Commenters stated CeBONDS does not contain accurate, up-to-date
information. One commenter experienced a delay for several days between
Executive Office for Immigration Review (EOIR), a sub-agency of the
DOJ, setting a bond and information being properly entered into
CeBONDS. Failures by the CeBONDS system to contain accurate, up-to-date
information has frustrated sponsors attempting to pay bonds for bond-
eligible noncitizens who provided the necessary documentation, leading
to the noncitizens' prolonged detention. Another commenter stated after
uploading documents to CeBONDS, the commenter needed to provide
additional copies because the ICE employee was unable to locate the
documents in CeBONDS. Commenters stated CeBONDS lacks a real-time way
to solve problems that forces obligors to engage with ICE agents for
help, and request status updates and information. Other commenters
experienced slow email responses from the general Helpdesk and slow
response times from local ICE offices processing bonds. Other
commenters stated the ICE Information Technology (IT) support staff are
unable to respond or provide timely remedies for detained noncitizens.
Commenters stated CeBONDS is difficult and confusing to navigate
regardless of English proficiency. Commenters stated that CeBONDS
increases the complexity of paying bonds and using the system should
not require obligors to be technologically savvy.
Response: These comments are focused on technical and functional
issues related to CeBONDS, but this rule does not implement this
system. Rather, the rule authorizes ICE to serve bond related notices
to obligors who consent
[[Page 547]]
to receive those notices electronically. Additionally, commenters did
not provide specific dates or times of alleged outages.
DHS has made various system updates to CeBONDS to improve
functionality. Since CeBONDS deployed in April 2023, the system has not
experienced any unscheduled system-wide outages, crashes, or failures.
Furthermore, the number of customer-reported issues or incidents has
substantially decreased. Comparably, from April to June 2023, there
were 783 customer reported issues or incidents. That number was reduced
by 62 percent or 487 reported issues or incidents from October to
December of the same year.
CeBONDS does not contain information from EOIR. Once a request to
post bond is received either via CeBONDS or in-person at an ICE office,
the process for validating all the bond information is the same and is
performed by an ICE official. An obligor can utilize the CeBONDS
system's comment section to communicate (send comments or upload
documents) in real time with ICE officials throughout the bond process.
CeBONDS payments are made via Fedwire or ACH. Depending on the time
of day the payment is made, Fedwire payments are settled the same day
and ACH payments typically settle 1 to 2 business days after they have
been initiated. After the payment has been completed between the
financial institutions, ICE can verify the payment. Next, the obligor
will upload the payment receipt and bond contract and submit these
documents. Thereafter, the obligor will receive correspondence via
email and in their CeBONDS account that their request is under ICE
review. Once the review and payment are confirmed, the obligor will
receive an email and their CeBONDS account will reflect that the bond
has been approved. When the noncitizen is released from custody, the
obligor will receive correspondence via email and in their CeBONDS
account that the noncitizen has been released from custody. At each
step in the bond posting process, the actions from ICE and the obligor
are both tracked in CeBONDS.
The system does not require anyone to be technologically savvy. ICE
has provided a tutorial along with frequently asked questions on the
<a href="http://ICE.gov/bonds">ICE.gov/bonds</a> web page to assist obligors. The tutorial is provided in
English and Spanish. Additionally, obligors can contact their local ICE
office for assistance or email any system related questions or concerns
to <a href="/cdn-cgi/l/email-protection#93dad0d6d0f6d1dcddd7c0bedbf6ffe3f7f6e0f8d3faf0f6bdf7fbe0bdf4fce5"><span class="__cf_email__" data-cfemail="a4ede7e1e7c1e6ebeae0f789ecc1c8d4c0c1d7cfe4cdc7c18ac0ccd78ac3cbd2">[email protected]</span></a>.
O. In-Person Bond Payment
Comment: The majority of commenters requested ICE allow obligors
the option to pay bonds in-person indefinitely. Commenters stated that
paying bonds in-person is quicker and completed within hours compared
to CeBONDS which takes days to process. One commenter stated that
eliminating the option of in-person bond payments to transition to
CeBONDS will stymie obligors from complying with ICE requirements.
Another commenter stated that bond notices delivered by mail
increases the assurance of noncitizens and obligors receive and sign
all notices. Without evidence, the commenter stated paying bonds in-
person can reduce the likelihood of fraud and increase noncitizens
presence for court hearings.
Another commenter stated paying bonds in person facilitates an
efficient process and alleviates stressful situations for noncitizens
and obligors when dealing with immigration detention. The commenter
continued that if ICE intended this electronic system provide
organizations with a more convenient way to pay bonds, then it should
honor its intention and maintain the option of in-person payments. This
will ensure that the bond payment system is truly responsive to the
needs of the community it serves and does not create unnecessary
barriers for those grappling with challenging circumstances.
One commenter suggested that in-person bond payment would increase
ICE funds because CeBONDS is too difficult to understand, and obligors
do not have bank accounts or computers.
Commenters stated the IFR does not intend to refuse obligors from
posting bonds in-person. However, commenters asserted this contradicts
the practice at ICE facilities and information on the ICE website.\49\
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\49\ U.S. Immigration and Customs Enforcement, Post a Bond (last
updated Sept. 17, 2024), <a href="https://www.ice.gov/detain/detention-management/bonds">https://www.ice.gov/detain/detention-management/bonds</a>.
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Commenters stated that ICE's informational web page fails to inform
the public when ICE may accept an in-person bond payment. Commenters
expressed that obligors may not know or understand if there is an
option to pay in person and urges DHS and ICE to clarify, publicize,
and enforce this option.
Response: The rule does not impact the payment methods of obligors.
This rule provides a regulatory framework that allows ICE to serve
certain bond notices electronically for obligors who consent to
electronic service. Notably, the rule provides safeguards in instances
where electronic service is not confirmed, for which ICE must
effectuate service via mail, which would be the equivalent method of
service for an obligor who opts out of electronic service.
To assure the notice is opened by the obligor, CeBONDS will track
the timestamp when the notice is viewed in the system. Viewing of the
notice in the system constitutes when the obligor is served with the
notice. At each step of this process, CeBONDS tracks the actions taken
in the system and the actions of the obligor. Furthermore, the notice
in CeBONDS is available to the obligor anytime the obligor logs into
the system.
If the obligor does not open the notice, a new notice will be sent
via ordinary or certified mail (depending on the notice) to the last
known address.
The requirements of the obligor are not dependent on how the
obligor posts bond (in-person or electronically). Therefore, obligors
who post a bond as security for performance and fulfillment of the
bonded noncitizen's obligations to the government are not impacted. The
obligor still must comply with the requirements in the contract with
ICE.
Regarding the comment about ICE funds increasing with in-person
payment, there is no data to support this statement, and is irrelevant
because the option of in-person payment is not removed by this rule. If
electronic payment is unattainable, obligors can continue to use the
in-person system.
Obligors can still pay bonds in person. The intent of the IFR and
this final rule are to improve the service delivery of bond notices to
obligors. It does not impact an individual's ability to pay in person.
The rule authorizes ICE to serve bond-related notices to obligors who
opt-in to receive those notices electronically.
From April 2023 to January 2024, 7,424 obligors paid bonds using
CeBONDS or in-person. Forty percent of obligors (3,021) used CeBONDS
and 60 percent (4,400) paid bonds in-person at an ICE facility. This
highlights that the ability to pay in person remains an option. Any
obligor who has a question about posting a bond in person can contact
the nearest ICE office for guidance.
P. Out of Scope
1. Alternatives to Detention
Comment: One commenter provided a comment regarding ICE's
Alternatives to Detention (ATD) program, which uses case management and
technology tools to support noncitizen compliance with release
conditions while on ICE's non-
[[Page 548]]
detained docket. The commenter suggested that DHS propose a mechanism
for seizing and/or shutting off such electronic monitoring devices
remotely for noncitizens who abscond. Additionally, the commenter noted
various sources and statistics to indicate an increase in the use of
ATD technology and stated that there are issues associated with such
technology, such as inefficiency, lack of punishments for violations,
and no deportations for noncitizens under SmartLink. The commenter
generally raised concerns on releasing noncitizens under the ATD
program; noncitizens working unlawfully; and how such releases may be
perceived by human smugglers, cartels, and migrants.
Response: This comment is beyond the scope of the IFR and this
final rule because it does not relate to immigration bond notifications
or electronic service of immigration bond related notices. ICE's ATD
program is utilized to ensure that a noncitizen complies with their
release conditions.\50\ The IFR and this final rule are not intended to
address any such issues. Thus, no further response is required for this
comment.
---------------------------------------------------------------------------
\50\ U.S. Immigration and Customs Enforcement, ICE Alternatives
to Detention (last updated June 24, 2024), <a href="https://www.ice.gov/features/atd">https://www.ice.gov/features/atd</a>.
---------------------------------------------------------------------------
2. 31 U.S.C. 5103, Legal Tender
Comment: One commenter stated the rule challenges 31 U.S.C. 5103
which requires the acceptance of any legal tender for all debts, public
charges, taxes, and dues.
Response: Section 5103 of Title 31 of the U.S. Code provides that
``United States coins and currency (including Federal reserve notes and
circulating notes of Federal reserve banks and national banks) are
legal tender for all debts, public charges, taxes, and dues. Foreign
gold or silver coins are not legal tender for debts.'' The commenter
did not explain how this statute is relevant to electronic service of
bond notices and why this rule implicates the statute. If the commenter
is implying that the statute requires the government to accept cash
payments from an obligor, such comment is outside of the scope of this
rule, as the rule focuses on electronic service of bond notices.
Nevertheless, in the context of posting bond payments through CeBONDS,
the commenter's interpretation misconstrues the meaning of the statute.
The statute establishes what constitutes legal tender in the United
States and does not impose a requirement on the government to accept
cash payments.\51\ Congress enacted this statute to ``establish and
maintain a uniform national currency'' to avoid having a ``system in
which individual states can issue their own currency, or declare things
other than federally-issued money to constitute legal tender.'' Genesee
Scrap & Tin Baling Co. v. City of Rochester, 558 F. Supp. 2d 432, 437
(W.D.N.Y. 2008). In any event, given that the statute does not have any
bearing on immigration bond notifications and electronic service, this
comment is beyond the scope of this rule and requires no further
response.
---------------------------------------------------------------------------
\51\ See, e.g., Tennessee Scrap Recyclers Ass'n v. Bredesen, 556
F.3d 442, 458 (6th Cir. 2009) (city ordinance requiring payment by
check, money, or payment vouchers only did not violate or implicate
31 U.S.C. 5103); Genesee Scrap & Tin Baling Co. v. City of
Rochester, 558 F. Supp. 2d 432, 434 (W.D.N.Y. 2008) (city ordinance
specifying that cash may not be used for transactions did not
violate 31 U.S.C. 5103); In re Reyes, 482 B.R. 603, 606 (D. Ariz.
2012) (requiring debtors to make plan payments using only certified
funds, automatic wage withdrawals, or electronic transfers did not
violate 31 U.S.C. 5103). As the bankruptcy court In re Reyes
explained, narrowly interpreting the statute ``to forbid all but
cash payments `would strain logic.' '' 482 B.R. at 606.
---------------------------------------------------------------------------
III. Statutory and Regulatory Requirements
DHS developed this final rule after considering numerous statutes
and executive orders related to rulemaking. The below sections
summarize the analyses based on a number of these statutes or executive
orders.
A. Administrative Procedure Act
The Department has forgone the Administrative Procedure Act's
(``APA'') delayed-effective-date procedure in implementing this rule
because the APA's requirement for a 30-day delayed effective date
applies to substantive rules, see 5 U.S.C. 553(d), whereas this rule,
like the IFR, is a rule of agency organization, procedure, or practice,
see 5 U.S.C. 553(b)(A). In the IFR, ICE invoked the procedural rule
exception to bypass notice-and-comment rulemaking. ICE, in citing the
D.C. Circuit's ``oft-cited formulation,'' explained the 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). The IFR merely added another method (e.g., electronic service)
for ICE to serve bond-related notifications for anyone enrolling in or
using an ICE electronic bonds systems. ICE is not removing or limiting
any of the current methods of service found in 8 CFR 103.8(a)(1) or
(2). These changes were procedural in nature, improve the effectiveness
and efficiency of agency operations, and did not alter substantive
rights. The same is the case with this rule.
Even if the 30-day delayed-effective-date requirement did apply,
the Department would find good cause to make this rule effective
sooner. 5 U.S.C. 553(d)(3). The IFR is already in effect and the
changes in the final rule are merely clarifying or technical. None of
the amendments implicate the justifications for the 30-day waiting
period. The purpose of the waiting period is ``to give affected parties
time to adjust their behavior before the final rule takes effect.''
Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992).
Here, however, that purpose would not be served by delaying the
effective date of the rule: The IFR has been in effect since September
7, 2023, and finalizing the provisions in this rule does not require
anyone to change their conduct or to take any particular steps in
advance of the effective date. See United States v. Gavrilovic, 551
F.2d 1099, 1104 (8th Cir. 1977) (noting that the ``legislative history
of the APA'' indicates that the waiting period ``was not intended to
unduly hamper agencies from making a rule effective immediately,'' but
intended ``to `afford persons affected a reasonable time to prepare for
the effective date of a rule . . . or to take other action which the
issuance may prompt' '' (citing S. Rep. No. 752, 79th Cong., 1st Sess.
15 (1946); H.R. Rep. No. 1980, 79th Cong., 2d Sess. 25 (1946))). In
fact, ICE has already implemented the IFR and the public will not need
to adjust its behavior at all following the issuance of this final
rule. Because there were no substantive changes from the IFR, the
public has had sufficient notice of the provisions in this final rule
and a delay in the rule's effective date is unnecessary.
B. Executive Orders 12866, 13563, and 14094: Regulatory Review
Executive Order 12866, Regulatory Planning and Review, as amended
by Executive Order 14094, Modernizing Regulatory 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
[[Page 549]]
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility.
This final rule 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.
Summary of the Analysis
DHS estimates the effects of the final rule relative to a baseline
condition without the 2023 IFR.\52\ DHS estimates that the final rule
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 $561,317 discounted
at 3 percent and $182,870 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 notices. In accounting for the costs and cost-savings of
this final rule, ICE has assumed that all obligors will adopt
electronic service within the first year of the publishing of this
final rule. New bond obligors who consent to enrolling in CeBONDS or
eBONDS will use 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).
---------------------------------------------------------------------------
\52\ OMB Circular A-4 states that ``the benefits and costs of a
regulation are generally measured against a no-action baseline: an
analytically reasonable forecast of the way the world would look
absent the regulatory action being assessed.'' Nov. 9, 2023, <a href="https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf</a> (last
visited September 26, 2024). Consistent with OMB Circular A-4, DHS
has analyzed finalization of the IFR as compared to a state of the
world that (hypothetically) lacks the IFR. The ``without-IFR
baseline'' is the primary baseline. This rule has no effects
relative to a state of the world that includes the IFR (i.e., a
``with-IFR baseline), because this rule's changes relative to the
IFR are clarifying and technical in nature and have no real-world
effects on the government or the public.
Table 1--OMB Circular A-4 Accounting Statement 2023
[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%)........................ .544.............. RIA.
(7%)........................ .584.............. 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......... FR.
Tribal Governments.
Effects on Small Business....... Undetermined...... FR.
Effects on Wages................
Effects on Growth...............
------------------------------------------------------------------------
[[Page 550]]
Background and Purpose of 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. Prior to the IFR, the
rules on service limited ICE to serving documents in person or by
certified, registered, or regular mail. However, serving documents in
this manner can take more time and be more costly compared to
electronic methods of service. The final rule confirms the IFR in
authorizing ICE to serve electronic bond-related notices and
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 the regulatory requirements under 8 CFR 103.8(a)(1) and 103.8(a)(2)
for personal and routine service (pre-IFR), that capability has not
been implemented in eBONDS.\53\ Similarly, ICE has developed CeBONDS to
allow cash bond obligors to post cash immigration bonds online without
obligors having to appear in person at an ICE office. CeBONDS offers to
individuals posting cash bonds all the conveniences that eBONDS
provides to surety companies. This final rule authorizes ICE to serve
bond-related notices and notifications electronically for those who
consent, setup an account, and utilize the eBONDS and CeBONDS systems.
---------------------------------------------------------------------------
\53\ U.S. Dep't of Homeland Security, Privacy Impact Assessment
Update for the Bonds Online System (eBONDS) Phase Two (Jan. 24,
2013), <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>.
---------------------------------------------------------------------------
Time Horizon for the Analysis
ICE estimates the economic effects of this final rule 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. DHS expresses quantified impacts in 2023
dollars and uses discount rates of 3 and 7 percent, pursuant to
Circular A-4.
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 entail that current obligors adopt electronic notifications as
they become familiar with the changes presented in this final rule.
Based on input from ICE subject matter experts, this analysis also
assumes that all 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. While the analysis assumes that all
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.\54\ 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 by mail if emails fail, or the possibility of less than full
adoption by the public. With this final rule, obligors utilizing
CeBONDS and eBONDS will automatically enroll in electronic
notifications upon consent, though they will have the option to utilize
physical service under certain circumstances--such as an obligor
lacking the means to access the internet.
---------------------------------------------------------------------------
\54\ ICE subject matter experts expressed that they expect
nearly every obligor to utilize these systems, and that in the first
year of the CeBONDS system being active only approximately five
percent of obligors pay bonds in person. This analysis assumes the
percentage of in-person payments will decline over time as adoption
continues. Commenters and stakeholders did not present data that
challenged this assumption broadly but provided anecdotal evidence
of certain obligors not being able to use the electronic systems and
needing an in-person option. DHS is committed to maintaining an in-
person payment option for such exceptions, but for the purpose of
not inserting additional uncertainty into this analysis, DHS has not
changed this assumption.
---------------------------------------------------------------------------
Affected Population
The final rule affects 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 notices electronically to any obligor
who chooses to post a bond electronically.
To account for these populations, ICE utilized its Bond Management
Information System (BMIS) 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 (FYs) 2018 and 2020. Additionally, ICE found that between
FYs 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 FY 2018 FY 2019 FY 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).
[[Page 551]]
Baseline
This section details the regulatory baseline for this final rule.
The table below provides a summary of the anticipated changes to
baseline conditions due to this final rule.
Table 3--Summary of Expected Impacts
----------------------------------------------------------------------------------------------------------------
Description of Affected
Provision change population Cost impact Benefit impact
----------------------------------------------------------------------------------------------------------------
Serve Bond-Related Notices The electronic <bullet> All bond <bullet> <bullet> Improved
Electronically. service process obligors who post Familiarization program delivery.
entails serving immigration bonds costs. <bullet> Expedited
immigration (ICE) online using the <bullet> Potential service process.
bond-related CeBONDS or eBONDS technology costs.
notices system. <bullet>
electronically <bullet> Federal Opportunity costs
and sending email Government. to create an
notifications CeBONDS account.
that notices have <bullet> Program
been posted to cost savings..
their account to
bond obligors who
have posted a
bond using the
eBONDS and
CeBONDS systems.
----------------------------------------------------------------------------------------------------------------
Operational 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 ordinary 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 ordinary 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) \55\ 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
utilized 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.
---------------------------------------------------------------------------
\55\ 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 notices served by mail per year, of
each type of immigration bond, based on data from fiscal year 2018 to
2020 (Table 4). ICE found the average number of all types of notices
per year to be 45,358.
Table 4--Types of Immigration Bond Notices
------------------------------------------------------------------------
Average annual
number of
Notice type notices mailed
(FY 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
------------------------------------------------------------------------
Source: DHS/ICE Bond Management Information System (BMIS).
ICE anticipates that, in the absence of this rulemaking, the agency
would continue to serve all bond-related notices 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 notices
manually, and bond obligors would continue to receive physical
notifications via an authorized form of paper-based service.
Costs of the Final Rule
This alternative electronic method of ICE's process for serving
bond notices will introduce familiarization, technology, and
opportunity costs to the affected populations.
Quantified Costs
Familiarization--A likely impact of the final rule 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 final rule. To the extent these entities are
directly regulated by the rule, familiarization costs will 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 will 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 18,250 words, ICE estimates the time to read the final
rule is approximately 61 to 73 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.\56\ An entity, such as a surety
company may have more than one person who reads the final rule. Using
the average hourly rate of total compensation of $44.27 for all
occupations (both civilian and private),\57\ ICE estimates that the
opportunity cost of time will range from $44.88 to $53.86 per
individual who must read and review the final rule (in 2023
dollars).\58\
---------------------------------------------------------------------------
\56\ See 87 FR 10570 (Feb. 24, 2022) and 87 FR 18078 (Mar. 29,
2022).
\57\ Average hourly total compensation $44.27 = ($45.42 civilian
workers + $43.11 private industry workers) / 2. Total Compensation
for civilian workers and private industry workers, U.S. Dep't of
Labor, Bureau of Labor Statistics, Employer Costs for Employe
Compensation--December 2023, (March 13, 2024), <a href="https://www.bls.gov/news.release/archives/ecec_03132024.pdf">https://www.bls.gov/news.release/archives/ecec_03132024.pdf</a>.
\58\ Calculation: Average total compensation for civilian and
private industry ($44.27 = ($45.42 + 43.11) / 2)), multiplied by the
(lower and upper bound) number of hours required to read the rule
(1.014 and 1.217, respectively), equate to the per individual
opportunity cost of time required to read the rule ($44.88 to
$53.86, respectively). Word count estimated as of March 25, 2024.
---------------------------------------------------------------------------
[[Page 552]]
While the analysis assumes all 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 provides an estimate for the number of people that will
familiarize themselves with this rule based on expected users. To
estimate this population, ICE utilized counts of bond obligors \59\ and
surety companies \60\ between FY 2018 and FY 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 or
party will be responsible for reading the final rule, the total
familiarization cost will range from $1,878,048 to $2,253,826 (in 2023
dollars).\61\ The average of this estimated range for familiarization
for bond obligor entities, $2,065,937, is used in the accounting of the
first year of the cost of this final rule.
---------------------------------------------------------------------------
\59\ Data was obtained from the DHS/ICE BMIS (obtained 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.
\60\ 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.
\61\ Range for total familiarization cost: lower bound $44.88 x
41,846 = $1,878,048; upper bound $53.86 x 41,846 = $2,253,826.
---------------------------------------------------------------------------
Account Creation--In accounting for the costs of electronic bond-
related notices, ICE considered whether bond obligors or surety
companies will face opportunity costs to utilize eBONDS and CeBONDS.
For ICE to send notifications electronically to bond obligors, the bond
obligors will need to create a personal account to access bond-related
notices and process bond payments. ICE estimates the time to create
this account is no more than 10 minutes. Using the average total rate
of compensation as $44.27 \62\ per hour for all occupations, ICE
estimates that the opportunity cost of time will be $7.38 per
individual (or surety company) who creates an account. To estimate this
population, ICE utilized a 3-year average population count \63\ of bond
obligors between fiscal year 2018 and 2020 (from table 2) and assumes
that all 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 is
$308,823.\64\ 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 adopt these systems is
$191.88.\65\
---------------------------------------------------------------------------
\62\ Average hourly total compensation $44.27 = ($45.42 civilian
workers + $43.11 private industry workers) / 2. Total Compensation
for civilian workers and private industry workers, U.S. Dep't of
Labor, Bureau of Labor Statistics, Employer Costs for Employe
Compensation--December 2023, (Mar. 13, 2024), <a href="https://www.bls.gov/news.release/archives/ecec_03132024.pdf">https://www.bls.gov/news.release/archives/ecec_03132024.pdf</a>.
\63\ Data was obtained from the DHS/ICE BMIS and utilized the
number of unique Tax Identification Numbers (TIN) for bond obligors
within a given set of years (obtained July 16, 2021).
\64\ $308,361.60 = $7.38 x 41,820 annual average number of
unique cash bond obligors (see Table 2).
\65\ $191.88 = $7.38 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 will create
accounts each year. This will equate to a total cost to the public of
$3,086,316 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.\66\ 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 notices 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 final rule.
---------------------------------------------------------------------------
\66\ Estimates provided by ERO, Bond Management Unit, July 14,
2022.
---------------------------------------------------------------------------
Unquantified Costs
ICE also identified additional unquantified costs that will result
from this final rule.
Technology--In accounting for the costs of electronic bond-related
notices and notifications, ICE considered whether bond obligors will
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 notices and
notifications, including the use of smart phones or personal computers.
Due to the high prevalence and wide-ranging public and private access
the internet, including access to free Wi-Fi 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 and notifications, 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 final rule. 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 final rule, as discussed above. The
10-year costs of the final rule are approximately $4.63 million and
$4.09 million (in 2023 dollars) at 3 and 7 percent discount rates,
respectively, and include the opportunity costs of familiarization and
setting up an online account.
[[Page 553]]
Table 5--Total Estimated Quantified Costs
----------------------------------------------------------------------------------------------------------------
Discounted at Discounted at
Year Undiscounted 3% 7%
----------------------------------------------------------------------------------------------------------------
1............................................................... $2,374,761 $2,305,593 $2,219,402
2............................................................... 308,632 290,915 269,571
3............................................................... 308,632 282,442 251,935
4............................................................... 308,632 274,215 235,454
5............................................................... 308,632 266,228 220,050
6............................................................... 308,632 258,474 205,654
7............................................................... 308,632 250,946 192,200
8............................................................... 308,632 243,637 179,626
9............................................................... 308,632 236,540 167,875
10.............................................................. 308,632 229,651 156,893
-----------------------------------------------
Total....................................................... 5,152,445 4,638,641 4,098,661
-----------------------------------------------
Annualized.............................................. .............. 543,790 583,557
----------------------------------------------------------------------------------------------------------------
Cost Savings of the Final Rule
This alternative method of ICE's process for serving bond-related
notices and 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 final rule.
Cost Savings Due to Electronic Bond-Related Service Process
Mailing Cost Savings--ICE estimated the cost-savings to government
that will be obtained from a 100 percent adoption of electronic bond-
related service process to be $609,594 per year (in 2023 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 $59.24, 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 adjustment of 16.82 percent.\67\ ICE based the fully
loaded wage rate on the wage rate of $45.19 per hour, adjusted upward
by 31.1 percent to account for compensation for benefits (in addition
to wages).\68\ This calculation resulted in an estimated labor cost of
$4.94 per mailing. ICE then added this labor cost to the cost of
materials (for the envelope, paper, etc.) \69\ 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 $609,594 was
derived.
---------------------------------------------------------------------------
\67\ U.S. Office of Personnel Mgmt., Pay & Leave (January 2024),
<a href="https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/24Tables/html/RUS_h.aspx">https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/24Tables/html/RUS_h.aspx</a> (last visited Nov. 15, 2024).
\68\ U.S. Dep't of Labor, Bureau of Labor Statistics, Employer
Costs for Employe Compensation--December 2023 (Mar. 13, 2024),
<a href="https://www.bls.gov/news.release/archives/ecec_03132024.pdf">https://www.bls.gov/news.release/archives/ecec_03132024.pdf</a>.
\69\ 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), as of
July 26, 2021.
Table 6--Government Cost Savings of Bond-Related Notices
----------------------------------------------------------------------------------------------------------------
Average number
of notices Cost per
Notice type mailed (FY 2018- notice Total cost
2020)
----------------------------------------------------------------------------------------------------------------
I-391 Cash Bond Cancellations.................................. 15,317 $5.61 $85,928
I-340 Cash Bond Obligor to Deliver Alien....................... 12,020 10.52 126,450
I-323 Cash Bond Breaches....................................... 7,128 10.52 74,987
I-340 Surety Bond Obligor to Deliver Alien..................... 6,080 42.07 255,786
I-391 Surety Bond Cancellations................................ 2,841 11.22 31,876
I-323 Surety Bond Breaches..................................... 1,412 21.04 29,708
Surety Bond Motion to Reopen or Reconsider..................... 306 11.22 3,433
Cash Bond Motion to Reopen or Reconsider....................... 254 5.61 1,425
------------------------------------------------
Totals..................................................... 45,358 13.44 609,594
----------------------------------------------------------------------------------------------------------------
Total Estimated Quantified Savings
Table 7 summarizes the quantified cost savings of this 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 notices in
the CeBONDS system, as well as emailed notifications. In order to
capture these cost savings over the time horizon of the analysis, ICE
assumed a
[[Page 554]]
constant average rate of notices over a 10-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 final
rule in 2023 dollars are $5.1 million and $4.2 million at 3 and 7
percent discount rates, respectively.
Table 7--Total Estimated Quantified Cost Savings
----------------------------------------------------------------------------------------------------------------
Discounted at Discounted at
Year Undiscounted 3% 7%
----------------------------------------------------------------------------------------------------------------
1............................................................... $609,594 $591,839 $569,714
2............................................................... 609,594 574,601 532,443
3............................................................... 609,594 557,865 497,610
4............................................................... 609,594 541,616 465,056
5............................................................... 609,594 525,841 434,632
6............................................................... 609,594 510,525 406,198
7............................................................... 609,594 495,655 379,624
8............................................................... 609,594 481,219 354,789
9............................................................... 609,594 467,203 331,579
10.............................................................. 609,594 453,595 309,887
-----------------------------------------------
Total................................................... 6,095,937 5,199,958 4,281,531
-----------------------------------------------
Annualized.............................................. .............. 609,594 609,594
----------------------------------------------------------------------------------------------------------------
Unquantified Benefits of the Final Rule
This alternative method of ICE's process, serving bond-related
notices electronically and 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 notices electronically
via the CeBONDS system and making bond obligors responsible for
ensuring that electronic bond-related notifications can be received by
email, ICE expects it will significantly reduce the number of bond-
related notices 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.\70\ The electronic
bond-related service process 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. This process is also expected to reduce the likelihood that an
obligor would miss the opportunity to appeal a bond breach
determination in time, which would otherwise lead to the forfeiting of
the bond amount. 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 notifications 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.
---------------------------------------------------------------------------
\70\ Data obtained internally by DHS/ICE BMIS, Financial Service
Center-Burlington, as of March 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 notice has been issued.
ICE, in turn, will also be able to confirm immediately the date that
the cash bond obligor opens and views the notice. 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 final rule 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,\71\ electronic notifications will
significantly reduce the use of paper and physical storage space.
---------------------------------------------------------------------------
\71\ 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.
------------------------------------------------------------------------
[[Page 555]]
Alternative: Take No Action
ICE considered a ``no action'' alternative under which ICE would
continue to serve bond-related notices 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 notices 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 shift
agencies' business processes and recordkeeping to a fully electronic
environment as encouraged by statutes like the Government Paperwork
Elimination Act,\72\ and more recently, the joint memorandum issued by
OMB and the National Archives and Records Administration \73\ 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 final rule
and the CeBONDS system is already being built and deployed independent
of this final rule.
---------------------------------------------------------------------------
\72\ Public Law 105-277, tit. XVII, section 1703, 112 Stat.
2681, 2681-749 (Oct. 21, 1998), 44 U.S.C. 3504.
\73\ Office of Management and Budget, Transition to Electronic
Records (OMB/NARA M-19-21) (June 28, 2019), <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 final rule. Absent the requirement to
use the CeBONDS system, bond obligors would not face the potential
costs associated with learning about the final rule, 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 final rule. As part of the
process of deciding to post a bond electronically with ICE, the obligor
will be informed that bond notices will be served electronically, and
the obligor must agree to receive them electronically as well as bond-
related electronic notifications. If the obligor does not wish to post
a bond electronically or receive bond notices and notifications
electronically, the obligor may post the bond in person at an ICE
office and receive notices and other bond-related information via
another form of authorized paper-based service.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. However, a regulatory
flexibility analysis is not required when a rule is exempt from notice-
and-comment rulemaking; therefore, since this action is exempt under
the APA, it is not subject to the regulatory flexibility analysis
requirements.\74\
---------------------------------------------------------------------------
\74\ See 5 U.S.C. 604(a).
---------------------------------------------------------------------------
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 final rule so that they can better
evaluate the effects on them and participate in the rulemaking. If the
final 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 final 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 final rule 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
final rule has been submitted to Congress and the Comptroller General
of the United States.
F. Unfunded Mandates Reform 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
final 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 or CeBONDS, 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 rule. 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 final rule
under Executive Order 13132 and determined that it does not have
implications for federalism.
I. Executive Order 12988: Civil Justice Reform
This final 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
[[Page 556]]
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 final 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 establishes 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 1500-1508.
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
final rule 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 final rule
is not part of a larger action. This final rule presents no
extraordinary circumstances creating the potential for significant
environmental effects. Therefore, this final rule is categorically
excluded from further NEPA review.
L. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This final 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 final 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 final rule and determined that
this final rule is not an economically significant rule and would not
create an environmental risk to 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 final 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 final 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
8 CFR Part 103
Administrative practice and procedures, Authority delegations
(government agencies), Fees, Freedom of Information, Immigration,
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 BENEFITS; BIOMETRIC RECORDS; 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, 1356b, 1372; 31 U.S.C. 9701; Pub. L. 107-296, 116 Stat. 2135
(6 U.S.C. 101 et seq.); Pub. L. 112-54, 125 Stat 550 (8 U.S.C. 1185
note); 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. Amend Sec. 103.6 by revising paragraphs (g) and (h) to read as
follows:
Sec. 103.6 Immigration bonds.
* * * * *
(g) Delivery bond notices to surrender aliens. Notwithstanding the
requirements of Sec. 103.8 for the service of other notices, ICE may
serve demand notices electronically to bond obligors who consent to
electronic delivery of service, or by any mail service that allows
delivery confirmation to cause an alien who has been released from DHS
custody on an immigration bond to
[[Page 557]]
appear at an ICE office or an immigration court. An electronic record
from the ICE bonds system showing that the bond obligor opened the
demand notice will constitute valid proof of service of the notice. If
ICE cannot confirm proof of service of the electronic notice, ICE will
issue a new 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 notices.
Notwithstanding the service requirements for demand notices in
paragraph (g) of this section, ICE may serve any other bond-related
notices that pertain to delivery, order of supervision, or voluntary
departure immigration bonds, such as bond breach or cancellation
notices, electronically to obligors who consent to electronic delivery
of service, or by ordinary mail. An electronic record from the ICE
bonds system showing that the bond obligor opened the bond-related
notice will constitute valid proof of service of the notice. If ICE
cannot confirm proof of service of the electronic notice, ICE will
reissue another notice to the bond obligor's last known address using
ordinary mail.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2024-31358 Filed 1-3-25; 8:45 am]
BILLING CODE 9111-CB-P
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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.