[Federal Register Volume 78, Number 208 (Monday, October 28, 2013)]
[Proposed Rules]
[Pages 64183-64186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-24750]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / 
Proposed Rules  

[[Page 64183]]



DEPARTMENT OF HOMELAND SECURITY

U.S. Immigration and Customs Enforcement

8 CFR Part 293

[DHS Docket No. ICEB-2013-0002]
RIN 1653-AA66


Change to Existing Regulation Concerning the Interest Rate Paid 
on Cash Deposited To Secure Immigration Bonds

AGENCY: U.S. Immigration and Customs Enforcement, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security proposes to amend its 
regulations addressing the payment of interest on cash bond deposits to 
explicitly provide that the Department of the Treasury (Treasury) will 
set the interest rate. In the future, Treasury will notify the public 
of its interest rate determinations by publishing the rates on the 
Treasury Web site or via another mechanism. The current rate of 
interest paid on deposits securing cash bonds is 3 percent per annum. 8 
U.S.C. 1363(a); 8 CFR 293.2. This action is consistent with the 
requirement of 8 U.S.C. 1363(a) that interest payments shall be ``at a 
rate determined by the Secretary of the Treasury, except that in no 
case shall the interest rate exceed 3 per centum per annum.''

DATES: Comments and related material must either be submitted to our 
online docket via http://www.regulations.gov on or before December 27, 
2013 or reach the Mail or Hand Delivery/Courier address listed below by 
that date.

ADDRESSES: You may submit comments, identified by DHS Docket No. ICEB-
2013-0002, by using any one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Bonds Branch, c/o Don Benoit, Bonds Branch 
Supervisor, Burlington Finance Center, P.O. Box 5000, Williston, VT 
05495.
     Hand Delivery/Courier: Don Benoit, Bonds Branch 
Supervisor, Burlington Finance Center, 166 Sycamore Street, Williston, 
VT 05495, between 9 a.m. and 5 p.m., Monday through Friday, except 
federal holidays. Contact telephone number (802) 288-7630.
    To avoid duplication, please use only one of these three methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or email Don Benoit, Bonds Branch Supervisor, Burlington 
Finance Center, P.O. Box 5000, Williston, VT 05495-5000. Telephone: 
(802) 288-7630, email: [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Public Participation
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Public Meeting
II. Abbreviations
III. Background
    A. Immigration Bonds Secured by Cash
    B. Payment of Interest on Cash Bond Deposits
    C. Request for Comments
IV. Regulatory Analyses
    A. Executive Orders 13563 and 12866: Regulatory Planning and 
Review
    B. Small Entities
    C. The Small Business Regulatory Enforcement Fairness Act of 
1996
    D. Paperwork Reduction Act of 1995
    E. Federalism
    F. Unfunded Mandates Reform Act of 1995
    G. Private Property
    H. Executive Order 12988 Civil Justice Reform
    I. Energy Effects
    J. Technical Standards
    K. National Environmental Policy Act

List of Subjects

    Amendments to the Regulations.

I. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (ICEB-2013-0002), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online or by mail or hand delivery, but please use only one of these 
means. We recommend that you include your name and a mailing address, 
an email address, or a phone number in the body of your document so 
that we can contact you if we have questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rule'' and insert ``ICEB-2013-0002'' in the ``Keyword'' box. 
Click ``Search'' then click on the balloon shape in the ``Actions'' 
column. If you submit your comments by mail or hand delivery, submit 
them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable 
for copying and electronic filing. If you submit comments by mail and 
would like to know that they reached the mailing address, please 
enclose a stamped, self-addressed postcard or envelope.
    We will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, and 
insert ``ICEB-2013-0002'' in the ``Search'' box. Click on ``Open Docket 
Folder,'' and then click on ``View Comment'' or ``View All'' under the 
``Comments'' section of the page. Individuals without internet access 
can make alternate arrangements for viewing comments and documents 
related to this rulemaking by contacting the Bonds Branch using the FOR 
FURTHER INFORMATION CONTACT information above. Please be aware that 
anyone can search the electronic form of comments received into any of 
our dockets by the name of the individual submitting the comment (or 
signing the

[[Page 64184]]

comment, if submitted on behalf of an association, business, labor 
union, etc.).

 C. Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to the docket using one of the methods specified under 
ADDRESSES. In your request, explain why you believe a public meeting 
would be beneficial. If we determine that one would aid this 
rulemaking, we will hold one at a time and place announced by a later 
notice in the Federal Register.

II. Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
ICE U.S. Immigration and Customs Enforcement
INA Immigration and Nationality Act of 1952, as amended
Sec.  Section symbol
U.S.C. United States Code

III. Background

A. Immigration Bonds Secured by Cash

    ICE may release certain aliens from detention during removal 
proceedings after a custody determination has been made pursuant to 8 
CFR 236.1(c). As a condition of his/her release from custody, an alien 
may be required to post an immigration bond. Currently, about 91 
percent of the immigration bonds issued each year is secured by cash. 
In FY 2012, there were a total of 56,501 immigration bonds posted. Of 
that, 51,451 were secured by cash, totaling almost $274.9 million; the 
remaining approximately 9 percent of the immigration bonds posted were 
surety bonds, totaling almost $39.4 million. (Fiscal Year 2012 Total, 
Cash Bonds and Surety Bonds--on file with the Bonds Branch, ICE 
Burlington Finance Center).
    All types of immigration bonds (delivery bonds, voluntary departure 
bonds, order of supervision bonds, public charge bonds, maintenance of 
status bonds, and stowaway bonds) secured by cash deposits are included 
in this proposed rule. When a cash bond is posted, the bond obligor 
pledges an amount of money equal to the face amount of the bond as 
``security for the performance and fulfillment of the obligations'' 
described in the bond form. ICE Form I-352, ] I (Rev. 03/08). ICE 
deposits cash pledged as security on immigration bonds in a fund 
maintained by Treasury known as the Immigration Bond Deposit Account. 
These funds are held ``in trust'' for the obligor and currently earn 
simple interest at the rate of 3 percent per annum. 8 U.S.C. 1363(a); 8 
CFR part 293. By signing the pledge and power of attorney in the bond 
form, the obligor authorizes the United States to ``collect or to 
assign and transfer'' the amount of money deposited as security to 
satisfy any ``damages, demands, or deficiencies arising by reason of'' 
the bond's breach. Id. ] I. In other words, the obligor agrees that, in 
case of default of any of the bond's terms and conditions, the 
Government has the power to retain the cash deposited to satisfy any 
damages, demands, or deficiencies arising from the default. ICE Form I-
352, ] I (Rev. 03/08). When the bond is breached, only the interest 
that has accrued on the cash deposit is returned to the obligor. When 
the bond's terms and conditions are satisfied, the bond is cancelled. 
In this situation, both the cash deposit for the face amount of the 
bond and the interest are sent to the obligor.

B. Payment of Interest on Cash Bond Deposits

    In 1970, Congress added section 293 of the Immigration and 
Nationality Act (INA), as amended, to pay interest at a rate determined 
by the Secretary of the Treasury, not to exceed 3 per centum per annum, 
on cash received as security for immigration bonds. Public Law 91-313 
(July 10, 1970) (codified at 8 U.S.C. 1363). Effective on the date of 
its publication in the Federal Register, July 23, 1971, the interest 
rate set by Treasury--3 per centum per annum--has been paid on cash 
bond deposits received after April 27, 1966. 36 FR 13677 (8 CFR part 
293). Thus, since 1971, the Government has paid simple interest at the 
rate of 3 percent per year on cash deposited by bond obligors to secure 
immigration bonds.

C. Request for Comments

    Under current law, Treasury has the sole authority to set the rate 
of interest that DHS will use to calculate the amount of interest paid 
in this context. Accordingly, DHS does not (indeed, cannot) propose any 
changes to the current interest rate paid to cash bond obligors.
    As explained above, current 8 CFR 293.2 states that ``effective 
from date of deposit occurring after April 27, 1966, the interest rate 
shall be 3 per centum per annum.'' In this action, DHS proposes to 
modify this provision to explicitly state that Treasury will set the 
interest rate directly. Thus, DHS will utilize the rate set by Treasury 
in issuing interest payments, but will have no role in setting the 
rate.
    Comments on matters committed by law to Treasury's sole discretion 
would be out-of-scope of this proposed rulemaking, however, commenters 
may have valuable input on the matters relevant to this rulemaking. DHS 
will consider all relevant comments and material received during the 
comment period and will respond to them in the final rule.

IV. Regulatory Analyses

A. Executive Orders 13563 and 12866: Regulatory Planning and Review

    Executive Orders 13563 and 12866 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. The Office of Management and Budget (OMB) has not 
designated this rule a ``significant regulatory action'' under section 
3(f) of Executive Order 12866. Accordingly, OMB has not reviewed the 
proposed rule.
    The proposed rule, if finalized, would explicitly state that 
Treasury is authorized by statute to set the interest rate paid on cash 
deposited to secure immigration bonds, provided that the rate cannot 
exceed 3 percent per year and cannot be less than 0. In deciding to 
propose this rule, DHS considered whether DHS would implement any 
possible future changes to the current fixed interest rate of 3 percent 
per annum that may be made by Treasury, through informal rulemaking or 
other means. DHS has rejected this alternative. Because Congress 
authorized the Secretary of the Treasury to set the rate directly, the 
approach that DHS proposes here is a more efficient and cost-effective 
process.
    This proposed rule does not propose any changes to the current 
interest rate paid to cash bond obligors; under current law, a change 
to the current interest rate paid cannot be made except under 
Treasury's sole authority. As this rulemaking does not propose any 
changes to the current fixed 3 percent per annum interest rate, this 
proposed rule does not impose any costs on bond obligors.
    As noted above, under current law, Treasury has the sole authority 
to set the interest rate that DHS uses to determine the amount of 
interest paid for cash immigration bonds. The proposed rule would 
provide that Treasury will set the

[[Page 64185]]

interest rate directly and will publish the interest rate on the 
Treasury Web site or through another mechanism. This would save DHS 
resources by removing the intermediate step for DHS to implement 
Treasury's decision by informal rulemaking.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000.
    This rule does not impose any direct costs on small entities. 
Consequently, DHS certifies this proposed rule, if finalized, would not 
impose a significant economic impact on a substantial number of small 
entities.

C. The Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by 5 U.S.C. 804, 
for purposes of congressional review of agency rulemaking under the 
Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 
104-121. This rule would not result in an annual effect on the economy 
of $100 million or more; a major increase in costs or prices; or 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of United States-based companies to compete 
with foreign-based companies in domestic or export markets.

D. Paperwork Reduction Act of 1995

    This proposed rule would call for no new collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

E. Federalism

    A rule has federalism implications under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments, on the relationship between the national government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government. We have analyzed this proposed rule 
under that Order and have determined that it does not have federalism 
implications.

F. Unfunded Mandates Reform Act of 1995

    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 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 one year. This proposed rule would not result 
in such an expenditure.

G. Private Property

    This proposed 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.

H. Civil Justice Reform

    Executive Order 12988 requires agencies to conduct reviews on civil 
justice and litigation impact issues before proposing legislation or 
issuing regulations. The order requires agencies to exert reasonable 
efforts to ensure that the regulation identifies clearly preemptive 
effects, effects on existing federal laws or regulations, identifies 
any retroactive effects of the regulation, and other matters. DHS has 
determined that this proposed rule meets the requirements of E.O. 12988 
because it does not involve any retroactive effects, preemptive 
effects, or any other matters addressed in E.O. 12988.

I. Energy Effects

    We have analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have 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 will not have a 
significant adverse effect on the supply, distribution, or use of 
energy.

J. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (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 impractical. 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 proposed rule does not use technical standards. 
Therefore, we did not consider the use of voluntary consensus 
standards.

K. National Environmental Policy Act

    U.S. Department of Homeland Security Management Directive (MD) 023-
01 establishes procedures that the Department 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. DHS MD 
023-01 lists the Categorical Exclusions that the Department has found 
to have no such effect. MD 023-01 app. A tbl.1.
    The proposed rule would amend 8 CFR Part 293 to change the interest 
rate for immigration bonds secured by cash from a fixed rate of 3 
percent per year to a rate determined by the Secretary of the Treasury, 
provided that the rate does not exceed 3 percent per year and is not 
less than 0.
    ICE has analyzed this proposed rule under MD 023-01. ICE has made a 
preliminary determination that this action is one of a category of 
actions which does not individually or cumulatively have a significant 
effect on the human environment. This proposed rule clearly fits within 
the two Categorical Exclusions found in MD 023-01, Appendix A, Table 1: 
A3(a): ``Promulgation of rules . . . of a strictly administrative and 
procedural nature''; and A3(d): ``Promulgation of rules . . . that 
interpret or amend an existing regulation without changing its 
environmental effect.'' This proposed rule is not part of a larger 
action. This proposed rule presents no extraordinary circumstances 
creating the potential for significant environmental effects. 
Therefore, this proposed rule is categorically excluded from further 
NEPA review.
    ICE seeks any comments or information that may lead to the 
discovery of any significant environmental effects from this proposed 
rule.

[[Page 64186]]

List of Subjects

8 CFR Part 293

    Administrative practice and procedure, Aliens, Bonds, Immigration, 
Interest rate.

Amendments to the Regulations

    For the reasons discussed in the preamble, DHS proposes to amend 8 
CFR part 293 as follows:

PART 293--DEPOSIT OF AND INTEREST ON CASH RECEIVED TO SECURE 
IMMIGRATION BONDS

0
1. Revise the authority citation for part 293 to read as follows:

    Authority:  8 U.S.C. 1363.

0
2. Revise Sec.  293.1 to read as follows:


Sec.  293.1  Computation of Interest.

    The Secretary of the Treasury determines the rate at which an 
immigration bond secured by cash shall bear interest, consistent with 8 
CFR 293.2. Interest shall be computed from the deposit date to and 
including the refund date or breach date of the immigration bond. For 
purposes of this part, the deposit date shall be the date shown on the 
receipt for the cash received as security on an immigration bond. The 
refund date shall be the date upon which the interest is certified to 
the Treasury Department for payment. The breach date shall be the date 
the immigration bond was breached as shown on Form I-323--``Notice--
Immigration Bond Breached.'' In counting the number of days for which 
interest shall be computed, the day on which the cash was deposited 
shall not be counted; however, the refund date or the breach date shall 
be counted.
0
3. Revise Sec.  293.2 to read as follows:


Sec.  293.2  Interest Rate.

    Interest on cash deposited to secure immigration bonds will be at 
the rate as determined by the Secretary of the Treasury, but in no case 
will exceed 3 per centum per annum or be less than zero. The rate will 
be published by Treasury on the Treasury Web site or through another 
mechanism.
0
4. Revise Sec.  293.3 to read as follows:


Sec.  293.3  Time of Payment.

    Interest shall be paid only at time of disposition of principal 
cash when the immigration bond has been cancelled or declared breached.
0
5. Remove Sec.  293.4.

Rand Beers,
Acting Secretary of Homeland Security.
[FR Doc. 2013-24750 Filed 10-25-13; 8:45 am]
BILLING CODE 9111-28-P