Asylum Interview Interpreter Requirement Modification Due to COVID-19, 51781-51788 [2021-20161]

Download as PDF 51781 Rules and Regulations Federal Register Vol. 86, No. 178 Friday, September 17, 2021 This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 1–877–889–5627 (TTY/TDD). SUPPLEMENTARY INFORMATION: The Code of Federal Regulations is sold by the Superintendent of Documents. I. Legal Authority To Issue This Rule and Other Background DEPARTMENT OF HOMELAND SECURITY 8 CFR Part 208 [CIS No. 2671–20; DHS Docket No. USCIS– 2020–0017] RIN 1615–AC59 Asylum Interview Interpreter Requirement Modification Due to COVID–19 U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS). ACTION: Temporary final rule; extension. AGENCY: The Department of Homeland Security (DHS) is extending for a second time the effective date (for 180 days) of its temporary final rule that modified certain regulatory requirements to help ensure that USCIS may continue with affirmative asylum adjudications during the COVID–19 pandemic. This rule also provides that if a USCIS interpreter is unavailable, USCIS will either reschedule the interview and attribute the interview delay to USCIS for the purposes of the asylum employment authorization regulation, or USCIS may, in its discretion, allow the applicant to provide an interpreter. DATES: This temporary final rule is effective from September 20, 2021, through March 16, 2022. As of September 20, 2021, the expiration date of the temporary final rule published at 85 FR 59655 (Sept. 23, 2020), which was extended at 86 FR 15072 (Mar. 22, 2021), is further extended from September 20, 2021, to March 16, 2022. FOR FURTHER INFORMATION CONTACT: Andria Strano, Acting Chief, Division of Humanitarian Affairs, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20588–0009; telephone (240) 721–3000 (not a toll-free call). SUMMARY: VerDate Sep<11>2014 15:31 Sep 16, 2021 Jkt 253001 A. Legal Authority The Secretary of Homeland Security (Secretary) takes this action pursuant to his authorities concerning asylum determinations. The Homeland Security Act of 2002 (HSA), Public Law 107–296, as amended, transferred many functions related to the execution of Federal immigration law to the newly created DHS. The HSA amended the Immigration and Nationality Act (INA or the Act), charging the Secretary ‘‘with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens,’’ INA 103(a)(1), 8 U.S.C. 1103(a)(1), and granted the Secretary the power to take all actions ‘‘necessary for carrying out’’ the immigration laws, including the INA, id. 1103(a)(3). The HSA also transferred to DHS responsibility for affirmative asylum applications made outside the removal context. See 6 U.S.C. 271(b)(3). That authority has been delegated within DHS to U.S. Citizenship and Immigration Services (USCIS). USCIS asylum officers determine, in the first instance, whether a noncitizen’s affirmative asylum application should be granted. See 8 CFR 208.4(b), 208.9. With limited exception, the Department of Justice Executive Office for Immigration Review has exclusive authority to adjudicate asylum applications filed by noncitizens who are in removal proceedings. See INA 103(g), 240; 8 U.S.C. 1103(g), 1229a. This broad division of functions and authorities informs the background of this rule. B. Legal Framework for Asylum Asylum is a discretionary benefit that generally can be granted to eligible noncitizens who are physically present or who arrive in the United States, irrespective of their status, subject to the requirements in section 208 of the INA, 8 U.S.C. 1158, and implementing regulations, see 8 CFR parts 208, 1208. Section 208(d)(5) of the INA, 8 U.S.C. 1158(d)(5), imposes several mandates PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 and procedural requirements for the consideration of asylum applications. Congress also specified that the Attorney General and Secretary of Homeland Security ‘‘may provide by regulation for any other conditions or limitations on the consideration of an application for asylum,’’ so long as those limitations are ‘‘not inconsistent with this chapter.’’ INA208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B). Thus, the current statutory framework leaves the Attorney General (and, after the HSA, also the Secretary) significant discretion to regulate consideration of asylum applications. USCIS regulations promulgated under this authority set agency procedures for asylum interviews, and require that applicants unable to communicate in English ‘‘must provide, at no expense to the Service, a competent interpreter fluent in both English and the applicant’s native language or any other language in which the applicant is fluent.’’ 8 CFR 208.9(g). This requirement means that all asylum applicants who cannot communicate in English must bring an interpreter to their interview. Doing so, as required by the regulation, poses a serious health risk because of the COVID–19 pandemic. Accordingly, this temporary rule extends the temporary final rule published at 85 FR 59655 for a second time to continue to mitigate the spread of COVID–19 by seeking to slow the transmission and spread of the disease during asylum interviews before USCIS asylum officers. To that end, this temporary rule will extend the requirement in certain instances allowing noncitizens interviewed for this discretionary asylum benefit to use USCIS-provided interpreters during interviews. This temporary rule also provides that if a USCIS interpreter is unavailable, USCIS will either reschedule the interview and attribute the interview delay to USCIS for the purposes of employment authorization under 8 CFR 208.7, or USCIS may, in its discretion, allow the applicant to provide an interpreter. C. The COVID–19 Pandemic On January 31, 2020, the Secretary of Health and Human Services (HHS) declared a public health emergency under section 319 of the Public Health Service Act (42 U.S.C. 247d), in response to COVID–19, which is caused E:\FR\FM\17SER1.SGM 17SER1 51782 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations by the SARS–CoV–2 virus.1 On February 24, 2021, the President issued a continuation of the National Emergency concerning the COVID–19 pandemic.2 Effective July 20, 2021, HHS renewed the determination that ‘‘a public health emergency exists and has existed since January 27, 2020 nationwide.’’ 3 A more detailed background discussion of the COVID–19 pandemic is found in the original temporary rule, as well as in the first extension of this rule, and USCIS incorporates the discussions of the pandemic into this extension with modification. 85 FR 59655; 85 FR 15072. Since publication of the original temporary rule and first extension, several variants of the virus that causes COVID–19 have been, and continue to be, reported in the United States.4 Evidence suggests that these variants may spread more quickly and easily than others and at least one variant may be associated with an increased risk of death.5 The COVID–19 Delta variant was first found in India in October 2020.6 Cases were discovered in the United States in late January 2021, and Delta has quickly become the predominant virus strain in the United States.7 It was labeled a Variant of Concern (VOC) by the HHS SARS–CoV– 2 Interagency Group (SIG), which defines VOCs as those with evidence of increased transmissibility and severe disease, reduced effectiveness of treatments or vaccines, and diagnostic detection failures.8 1 HHS, Determination that a Public Health Emergency Exists (Jan. 31, 2020), https:// www.phe.gov/emergency/news/healthactions/phe/ Pages/2019-nCoV.aspx. 2 Notice on the Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID–19) Pandemic, 86 FR 11599 (Feb. 26, 2021); Proclamation 9994 of March 13, 2020, Declaring a National Emergency Concerning the Coronavirus Disease (COVID–19) Outbreak, 85 FR 15337 (Mar. 18, 2020). 3 HHS, Renewal of Determination that a Public Health Emergency Exists (July 19, 2021), https:// www.phe.gov/emergency/news/healthactions/phe/ Pages/COVID-19July2021.aspx. 4 Centers for Disease Control and Prevention (CDC), SARS–CoV–2 Variant Classifications and Definitions (Aug. 3, 2021), https://www.cdc.gov/ coronavirus/2019-ncov/variants/variant-info.html ?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov %2Fcoronavirus%2F2019-ncov%2Fcasesupdates%2Fvariant-surveillance%2Fvariantinfo.html. 5 CDC, Variants of the Virus (July 29, 2021), https://www.cdc.gov/coronavirus/2019-ncov/ variants/variant.html. 6 Cov-Lineages, Global Lineage Report: B.1.617.2 (May 19, 2021); CDC, SARS–CoV–2 Variant Classifications and Definitions (Aug. 03, 2021); CDC, Delta Variant: What We Know About the Science (Aug. 06, 2021), https://www.cdc.gov/ coronavirus/2019-ncov/variants/delta-variant.html. 7 Id. 8 Id. VerDate Sep<11>2014 15:31 Sep 16, 2021 Jkt 253001 As of September 9, 2021, there have been approximately 222,406,582 cases of COVID–19 identified globally, resulting in approximately 4,592,934 deaths. Approximately 40,152,521 cases have been identified in the United States, with about 1,297,399 new cases identified in the 7 days preceding September 5th, and approximately 646,131 reported deaths due to the disease.9 In the week preceding September 5th, the United States was the country that reported the highest number of new cases, with a 38 percent increase.10 On August 23, 2021, the U.S. Food and Drug Administration (FDA) granted approval for the Pfizer-BioNTech COVID–19 vaccine for individuals 16 years and older, now marketed as Comirnaty.11 Prior to this, the FDA had issued emergency use authorizations (EUAs) for three COVID–19 vaccines, including the Pfizer-BioNTech vaccine.12 The two other vaccines that continue to be authorized for emergency use are produced by Moderna and Janssen.13 The Pfizer-BioNTech and Moderna vaccines require two doses to be effective at preventing COVID–19 illness.14 The Janssen vaccine is a single dose.15 As of September 9, 2021, approximately 177,433,044 people in the United States had completed a COVID–19 vaccination regimen.16 While the vaccine is now widely accessible in the United States, geographic data indicates a wide 9 World Health Organization (WHO), Weekly epidemiological update—7 September 2021 (Sept. 07, 2021), available at https://www.who.int/ publications/m/item/weekly-epidemiologicalupdate-on-covid-19--7-september-2021; WHO, WHO Coronavirus (COVID–19) Dashboard (Sept. 09, 2021), https://covid19.who.int/. 10 WHO, Weekly epidemiological update. 11 FDA, FDA Approves First COVID–19 Vaccine (Aug. 23, 2021), https://www.fda.gov/news-events/ press-announcements/fda-approves-first-covid-19vaccine. 12 FDA, Learn More About COVID–19 Vaccines From the FDA (content current as of July 12, 2021), https://www.fda.gov/consumers/consumer-updates/ learn-more-about-covid-19-vaccines-fda. 13 Id. Janssen Biotech Inc., the manufacturer of the third vaccine granted an EUA by the FDA, is a Janssen Pharmaceutical Company of Johnson & Johnson. 14 CDC, Moderna COVID–19 Vaccine Overview and Safety (updated June 11, 2021), https:// www.cdc.gov/coronavirus/2019-ncov/vaccines/ different-vaccines/Moderna.html; CDC, PfizerBioNTech COVID–19 Vaccine Overview and Safety (updated June 24, 2021), https://www.cdc.gov/ coronavirus/2019-ncov/vaccines/different-vaccines/ Pfizer-BioNTech.html. 15 CDC, Johnson & Johnson’s Janssen COVID–19 Vaccine Overview and Safety (updated June 23, 2021), https://www.cdc.gov/coronavirus/2019-ncov/ vaccines/different-vaccines/janssen.html. 16 CDC, COVID Data Tracker—COVID–19 Vaccinations in the United States (Sept. 09, 2021), https://covid.cdc.gov/covid-data-tracker/# vaccinations_vacc-total-admin-rate-total. PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 disparity in the percentages of fully vaccinated individuals by state, ranging from 39.6 percent in Alabama to 68.4 percent in Vermont, not taking into account United States territories.17 Health experts still do not know what percentage of people in the U.S. will need to be vaccinated before enough individuals in the community are protected to meaningfully reduce the spread of the disease from person to person, how effective the vaccines are against new variants, and how long the vaccines protect people.18 Furthermore, hospitalization and mechanical respiratory support may still be required in severe cases of COVID–19 illness, irrespective of vaccination status.19 Ongoing research demonstrates that while there is high vaccine effectiveness, fully vaccinated individuals continue to experience breakthrough COVID–19 infections and may be either symptomatic or asymptomatic.20 As of April 30, 2021, approximately 10,262 breakthrough infections were reported from 46 U.S. states and territories.21 This is likely a substantial undercount of cases, as CDC states that the current national surveillance system relies on voluntary reporting and data are only available for a small segment of reported cases.22 The data are further limited because on May 01, 2021, the CDC transitioned from tracking all reported COVID–19 vaccine breakthrough infections to only those among patients who are hospitalized or die.23 As of August 30, 2021, CDC data from 49 U.S. states and territories indicates 12,908 patients with patients with SARS–CoV–2 breakthrough infections were hospitalized or died.24 Testing is available to confirm suspected cases of COVID–19 infection. At present, the time it takes to receive 17 Id. 18 CDC, Key Things to Know About COVID–19 Vaccines (updated June 25, 2021), https:// www.cdc.gov/coronavirus/2019-ncov/vaccines/ keythingstoknow.html?CDC_AA_refVal=https %3A%2F%2Fwww.cdc.gov%2Fcoronavirus %2F2019-ncov%2Fvaccines%2F8-things.html. 19 National Insitutes of Health (NIH), COVID–19 Treatment Guidelines: Care of Critically Ill Adult Patients with COVID–19 (July 08, 2021), https:// www.covid19treatmentguidelines.nih.gov/ management/critical-care/summaryrecommendations/. 20 CDC, Morbidity and Mortality Weekly Report (MMWR): COVID–19 Vaccine Breakthrough Infections Reported to CDC—United States, January 1–April 30, 2021 (May 28, 2021), https:// www.cdc.gov/mmwr/volumes/70/wr/ mm7021e3.htm. 21 Id. 22 Id. 23 Id. 24 CDC, COVID–19 Vaccine Breakthrough Case Investigation and Reporting (Sept. 01, 2021), https://www.cdc.gov/vaccines/covid-19/healthdepartments/breakthrough-cases.html. E:\FR\FM\17SER1.SGM 17SER1 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations results varies based on, among other factors, type of test used, laboratory capacity, and geographic location.25 CDC guidance states that individuals who were exposed to a person with COVID–19 may later develop symptoms and should self-quarantine for 14 days, even with receipt of negative test results.26 There are also multiple variants of the virus that have resulted in COVID–19 infections in the United States, including the now predominant Delta variant.27 While vaccination is key in preventing severe disease like hospitalization or death, it may be less effective in preventing infection or transmission of the Delta variant since it is more contagious.28 Significant Delta variant-related outbreaks have occurred in the United States in recent months, most recently in Massachusetts after multiple large-scale summer events were held from July 3–17, 2021.29 After these events, 469 individuals contracted the virus, 74 percent of whom were fully vaccinated, and the outbreak was a major catalyst in the CDC’s subsequent guidance to resume indoor mask mandates.30 According to statistical models and genomic surveillance programs, the Delta variant now accounts for approximately 98.9 percent of new cases nationally and current data shows that it is having a disproportionately severe impact on unvaccinated populations.31 There are numerous challenges to resuming pre-COVID–19 operations, largely due to the emergence of the Delta variant. CDC has posted guidance for states, businesses, and the general public emphasizing the need for continued mask mandates on public transportation and airplanes, as wearing masks that completely cover the mouth and nose reduces the spread of COVID– 19.32 CDC is also encouraging 25 CDC, Overview of Testing for SARS–CoV–2 (COVID–19) (Aug. 02, 2021), https://www.cdc.gov/ coronavirus/2019-ncov/hcp/testing-overview.html. 26 CDC, Test for Current Infection (Viral Test) (Aug. 02, 2021), https://www.cdc.gov/coronavirus/ 2019-ncov/testing/diagnostic-testing.html. 27 CDC, SARS–CoV–2 Variant Classifications and Definitions; Cov-Lineages, Global Lineage Report: B.1.617.2. 28 CDC, Delta Variant: What We Know About the Science. 29 CDC, Outbreak of SARS–CoV–2 Infections, Including COVID–19 Vaccine Breakthrough Infections, Associated with Large Public Gatherings—Barnstable County, Massachusetts, July 2021 (Aug. 06, 2021), www.cdc.gov/mmwr/volumes/ 70/wr/mm7031e2.htm. 30 Id. 31 CDC, COVID Data Tracker: Variant Proportions (Sept. 07, 2021), https://covid.cdc.gov/covid-datatracker/#variant-proportions; CDC, Delta Variant: What We Know About the Science. 32 CDC, Requirement for Face Masks on Public Transportation Conveyances and at Transportation VerDate Sep<11>2014 15:31 Sep 16, 2021 Jkt 253001 restaurants and bars to maintain social distancing and mask rules and asking individuals to avoid large events and gatherings.33 As a result of CDC’s renewed mask guidance, the Office of Management and Budget (OMB) issued renewed mask guidelines on July 27, 2021, for employees, contractors, and visitors to Federal buildings which went into effect for DHS on July 28, 2021.34 Further, CDC predictive modeling forecasts a continued national increase in new cases, hospitalizations, and deaths over four week intervals. By the week ending October 2, 2021, forecasts expect a weekly increase of approximately 430,000 to 1,520,000 new cases, 6,400 to 19,500 new hospitalizations, and 6,900 to 18,000 new deaths, taking into account variations in social distancing and prevention measures across states. Variations beyond social distancing, including the reopening of schools, may also have an impact on these rates.35 Studies conducted early in the pandemic indicated low rates of transmission among children and as of September 9, 2021, approximately 62.5 percent of individuals 12 years of age and older were fully vaccinated.36 Since these early studies, infection rates have Hubs (Aug. 27, 2021), https://www.cdc.gov/ coronavirus/2019-ncov/travelers/face-masks-publictransportation.html. 33 CDC, Public Health Guidance for Potential COVID–19 Exposure Associated with Travel (July 02, 2021), https://www.cdc.gov/coronavirus/2019ncov/php/risk-assessment.html; CDC, Guidance for Organizing Large Events and Gatherings (May 20, 2021), https://www.cdc.gov/coronavirus/2019-ncov/ community/large-events/considerations-for-eventsgatherings.html; CDC, Considerations for Restaurant and Bar Operators (June 14, 2021), https:// www.cdc.gov/coronavirus/2019-ncov/community/ organizations/business-employers/barsrestaurants.html. 34 Department of Homeland Security, Effective Immediately, Updated Mask Guidance for All DHS Workspaces (July 28, 2021). 35 CDC, COVID–19 Forecasts: Cases (Sept. 08, 2021), https://www.cdc.gov/coronavirus/2019-ncov/ science/forecasting/forecasts-cases.html?CDC _AA_refVal=https%3A%2F%2F www.cdc.gov%2Fcoronavirus%2F2019ncov%2Fcases-updates%2Fforecasts-cases.html; CDC, COVID–19 Forecasts: Hospitalizations (Sept. 08, 2021), https://www.cdc.gov/coronavirus/2019ncov/science/forecasting/hospitalizationsforecasts.html?CDC_AA_refVal=https %3A%2F%2Fwww.cdc.gov%2Fcoronavirus %2F2019-ncov%2Fcases-updates%2F hospitalizations-forecasts.html; CDC, COVID–19 Forecasts: Deaths (Sept. 08, 2021), https:// www.cdc.gov/coronavirus/2019-ncov/science/ forecasting/forecasting-us.html?CDC_AA _refVal=https%3A%2F%2 Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2F covid-data%2Fforecasting-us.html. 36 CDC, COVID Data Tracker—COVID–19 Vaccinations in the United States; CDC, Science Brief: Transmission of SARS–CoV–2 in K–12 Schools and Early Care and Education Programs— Updated (July 09, 2021), https://www.cdc.gov/ coronavirus/2019-ncov/science/science-briefs/ transmission_k_12_schools.html. PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 51783 increased as opportunities for transmission, including school and summer camp attendance, expanded.37 It has been reported that at least 1,000 schools across 35 states have closed for in-person learning because of COVID–19 since the beginning of the 2021 school year.38 In order to minimize the spread, CDC currently recommends screening, physical distancing, taking precautions when participating in team or close contact sports, and consistent mask use, as inconsistent mask policies have contributed to school outbreaks.39 Finally, as the annual influenza season approaches, questions and concerns over increased transmission of SARS– CoV–2 and decreases in immunity remain. CDC currently recommends a booster shot beginning in the fall of 2021 for certain individuals who received the Pfizer or Moderna vaccines.).40 CDC’s decision to begin booster shots in the fall of 2021 is due to the current information about the vaccine effectiveness and the impact of variants on vaccine effectiveness.41 A recent study indicated that the infectivity and morbidity rates of COVID–19 are higher in colder climates and the transmissibility of the virus is affected by meteorological factors such as temperature and humidity.42 This, alongside the increased demand for healthcare resources due to seasonal influenza and the low likelihood that herd immunity will be achieved in 2021, should be taken into account when developing future intervention measures.43 II. Purpose of This Temporary Rule USCIS continues its efforts to protect the health and safety of the employees and the public, including: Requiring facial covers for all employees and members of the public above the age of 37 Id. 38 Jeanine Santucci and Grace Hauck, At least 1,000 schools in 35 states have closed for in-person learning since the start of the school year: COVID– 19 updates, USA TODAY (Sept. 5, 2021), https:// www.usatoday.com/story/news/health/2021/09/05/ covid-updates-mu-variant-spreads-hawaii-begstravelers-stay-away/5735064001/. 39 CDC, COVID Data Tracker—COVID—19 Vaccinations in the United States; CDC, Science Brief: Transmission of SARS–CoV–2 in K–12 Schools and Early Care and Education Programs— Updated (July 09, 2021), https://www.cdc.gov/ coronavirus/2019-ncov/science/science-briefs/ transmission_k_12_schools.html. 40 CDC, COVID–19 Vaccine Booster Shot (Aug. 20, 2021), https://www.cdc.gov/coronavirus/2019ncov/vaccines/booster-shot.html. 41 Id. 42 NIH, The role of seasonality in the spread of COVID–19 pandemic (Feb. 19, 2021), https:// www.ncbi.nlm.nih.gov/pmc/articles/PMC7892320/. 43 Id. E:\FR\FM\17SER1.SGM 17SER1 51784 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations two; 44 limiting the number of employees and members of the public in the office; posting social distance guidelines and asking visitors to answer health screening questions before entering; currently conducting interviews from separate offices to ensure that employees are not in the same room as members of the public; and installing plexiglass where necessary to provide a barrier for employees when social distancing is not possible. Between March 10, 2021, and August 8, 2021, USCIS conducted 9,136 asylum interviews, for a total of 16,900 interviews since September 23, 2020.45 The original temporary rule, implemented on September 23, 2020, and its extension implemented on March 22, 2021, and other noted public safety measures have helped mitigate the impact of COVID–19 and have been effective in keeping our workforce and the public safe. As of August 9, 2021, there have been 1,927 confirmed cases of COVID–19 exposure among USCIS employees and contractors. The USCIS exposure rate (6.8%) remains below the national average (10.6%) as of August 7, 2021. Therefore, DHS has determined that it is in the best interest of the public and USCIS employees and contractors to extend the temporary rule for another 180 days. Under this extension with modification, asylum applicants who are unable to proceed with the interview in English will ordinarily be required to proceed with government-provided telephonic contract interpreters provided the applicants speak one of the 47 languages found on the Required Languages for Interpreter Services Blanket Purchase Agreement/U.S. General Services Administration Language Schedule (‘‘GSA Schedule’’). If the applicant does not speak or elects to speak a language not on the GSA Schedule, the applicant will be required to bring his or her own interpreter who is fluent in English to the interview and 44 Facial coverings were part of the initial USCIS COVID mitigation efforts until the CDC and then DHS issued new guidance on May 14, 2021 that fully vaccinated individuals were no longer required to wear masks in DHS space and that temperature checks to enter DHS controlled space were also to be discontinued. On July 28, 2021, DHS issued guidance that all Federal employees, onsite contractors, and visitors, regardless of vaccination status or level of COVID transmission in the local area, are required to wear a mask inside all DHS workspaces and Federal buildings. Further guidance to the public as to the USCIS Response to COVID–19 and Operational Status can be found here: https://www.uscis.gov/about-us/uscisresponse-to-covid-19. 45 Between September 23, 2020 and March 10, 2021, USCIS conducted 7,764 asylum interviews. 86 FR at 15074. VerDate Sep<11>2014 15:31 Sep 16, 2021 Jkt 253001 the elected language not on the GSA schedule. DHS is also amending 8 CFR 208.9(h)(1) by allowing, in USCIS’ discretion, an applicant for asylum to provide an interpreter when a USCIS interpreter is unavailable. Specifically, if a USCIS interpreter is unavailable, USCIS will either reschedule the interview and attribute the interview delay to USCIS for the purposes of employment authorization pursuant to 8 CFR 208.7, or USCIS may, in its discretion, allow the applicant to provide an interpreter. DHS incorporates into this second extension with modification, the justifications, as well as the discussion on the benefits of providing telephonic contract interpreters in reducing the risk of contracting COVID–19 for applicants, attorneys, interpreters, and USCIS employees from the original temporary rule. III. Discussion of Regulatory Change: 8 CFR 208.9(h) 46 DHS has determined that there are reasonable grounds for considering potential exposure to SARS–CoV–2, including any emerging variants, as a public health concern and that these grounds are sufficient to continue to modify the interpreter requirement for asylum applicants to lower the number of in-person attendees at asylum interviews. For 180 days following publication of this temporary final rule, DHS will continue to require nonEnglish speaking asylum applicants appearing before USCIS to proceed with the asylum interview using USCIS’ interpreter services if they are fluent in one of the 47 languages as discussed in the temporary rule at 85 FR at 59657.47 DHS is also amending 8 CFR 208.9(h)(1) by allowing, in USCIS’ discretion, an applicant for asylum to provide an interpreter when a USCIS interpreter is unavailable. In these limited 46 The interpreter interview provisions can be found in two parallel sets of regulations: Regulations under the authority of DHS are contained in 8 CFR part 208; and regulations under the authority of the Department of Justice (DOJ) are contained in 8 CFR part 1208. Each set of regulations contains substantially similar provisions regarding asylum interview processes, and each articulates the interpreter requirement for interviews before an asylum officer. Compare 8 CFR 208.9(g), with 8 CFR 1208.9(g). This temporary final rule revises only the DHS regulations at 8 CFR 208.9. Notwithstanding the language of the parallel DOJ regulations in 8 CFR 1208.9, as of the effective date of this action, the revised language of 8 CFR 208.9(h) is binding on DHS and its adjudications for 180 days. DHS would not be bound by the DOJ regulation at 8 CFR 1208.9(g). 47 DHS notes that this extension does not modify 8 CFR 208.9(g); rather the extension temporary rule is written so that any asylum interviews occurring while the temporary rule is effective will be bound by the requirements at 8 CFR 208.9(h). PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 circumstances, if a USCIS interpreter is unavailable, USCIS will either reschedule the interview and attribute the interview delay to USCIS for the purposes of employment authorization pursuant to 8 CFR 208.7, or USCIS may, in its discretion, allow the applicant to provide an interpreter. The interpreter will be required to follow USCIS COVID–19 protocols in place at the time of the interview, including sitting in a separate office. Once this rule is no longer in effect, asylum applicants unable to proceed with an interview in English before a USCIS asylum officer will be required to provide their own interpreters under 8 CFR 208.9(g). Allowing an applicant for asylum to provide an interpreter when a USCIS interpreter is unavailable is important and to the benefit of the applicant for several reasons. In some instances, due to a variety of issues including competing demands in other caseloads, contractor availability, and an increased demand for certain languages, USCIS may have knowledge in advance of the interview, that a contract interpreter will not be available for a certain language during the time of the interview. In those instances, USCIS may notify the applicant that an interpreter is unavailable and give the applicant an opportunity to provide their own interpreter for that interview and not cause further delay in the case. This will help reduce unnecessary reschedules and prolonged delays and will help alleviate the burden rescheduling the interview could place on all parties involved, including the applicant, the applicant’s representative (if applicable), and the local USCIS office. Providing advance notice of the unavailability of an interpreter and the opportunity for applicants to provide their own interpreter will make the process more efficient, reduce the number of delays, and allow applicants to proceed with their interview. This modification to the governmentprovided telephonic interpreter requirement will not disadvantage applicants who cannot provide their own interpreter. Such an applicant would be in the same position they would have been without this change to the regulation, and if an applicant is unable to locate a competent interpreter once notified of the unavailability of a contract interpreter, the interview will be rescheduled and the reschedule delay will be attributed to USCIS for purposes of employment authorization. While USCIS cannot safely accommodate every interview being conducted if all applicants are required to bring an interpreter in person, as explained in this preamble, in these E:\FR\FM\17SER1.SGM 17SER1 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations limited circumstances where there is advance knowledge of the unavailability of a contract interpreter and an applicant is able to locate a competent interpreter, USCIS may, within its discretion, accommodate the applicant’s interpreter by following the same COVID–19 protocols in place at the time of interview that allow applicants and those necessary to participate in the interview to attend interviews in person safely. USCIS will continue to apply the COVID–19 protocols in place at the time of the interview, including relying on available technology to ensure that the officer, applicant, interpreter, witnesses, and legal representative sit in separate rooms to fully and safely participate in the interview while maintaining social distancing.48 Interpreters attending appointments with applicants under these limited circumstances will also be expected to follow the USCIS Visitor Policy requiring face coverings, maintaining social distancing during screening and while in USCIS space, and other guidance regarding exposure to COVID–19.49 This is consistent with current practices for an applicant who either does not speak a language on the GSA Schedule or elects to speak a language that is not on the GSA Schedule, and thus is required to bring his or her own interpreter to the interview who is fluent in English and the elected language (not on the GSA Schedule). This rule’s modification to 8 CFR 208.9(h)(1), giving USCIS discretion to allow asylum applicants to bring their own interpreter when a contract interpreter is unavailable will help advance the agency’s mission to fairly adjudicate immigration benefits. By building in flexibility for USCIS when an interpreter fluent in a language included in the GSA Schedule will be unavailable at the time of an asylum interview, USCIS will be better positioned to leverage its resources. In practice this will involve asylum offices evaluating their office space capacity and available asylum staff on a continuous basis to schedule cases in a manner that is consistent with social distancing guidelines and other noted public safety measures. Because USCIS will not schedule more cases than capacity permits under the COVID–19 guidelines, exceptions made to the government-contract interpreter requirement under this temporary final rule should not result in increased 48 See USCIS Response to COVID–19: Asylum Appointments, available at https://www.uscis.gov/ about-us/uscis-response-to-covid-19. 49 See USCIS Visitor Policy, available at https:// www.uscis.gov/about-us/uscis-visitor-policy. VerDate Sep<11>2014 15:31 Sep 16, 2021 Jkt 253001 exposure or individuals occupying the same physical space at a given time. These practices will also help address the recent emergence of the Delta variant, which as previously discussed, presents numerous challenges to resuming pre-COVID–19 operations, and which can be mitigated through the safety measures currently employed by USCIS.50 USCIS will continue to employ the same space planning and scheduling mechanisms to factor in the limited cases where USCIS is unable to provide a contract interpreter. USCIS will therefore have more flexibility to adapt to operational demands by proactively addressing the needs of applicants who would otherwise remain uninterviewed. Given the unique nature of the pandemic and the multiple challenges it has presented in the context of USCIS operations, the agency has had to modify its policies and procedures to adapt. Through the original temporary final rule and the first extension, USCIS adapted its procedures to keep the workforce and public safe while also striving to serve the customer. USCIS has adapted in other ways by developing electronic workflows for conducting interviews and completing the adjudication, and by monitoring language trends and interpreter availability. This second extension with the modification for applicants to bring their own interpreter under certain circumstances, is in keeping with the original goals of the temporary final rule, and gives the agency an opportunity to more effectively meet the needs of individuals seeking protection. DHS noted in the original temporary final rule and first extension that it would evaluate the public health concerns and resource allocations to determine whether to extend the rule. DHS has determined that extending this rule is necessary for public safety, and accordingly, DHS is extending this rule for 180 days unless it is further extended at a later date. This temporary rule continues to apply to all asylum interviews conducted by USCIS across the nation. USCIS has determined that an extension of 180 days is appropriate given that: (1) The pandemic is ongoing; 51 (2) several variants of the virus are circulating in the United States, with the highly contagious Delta 50 See Delta Variant: What We Know About the Science, available at https://www.cdc.gov/ coronavirus/2019-ncov/variants/delta-variant.html (last visited Aug. 31, 2021). 51 See 86 FR 11599; 85 FR 15337; HHS, Renewal of Determination that a Public Health Emergency exists. PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 51785 variant as the dominant strain; 52 (3) while vaccines are widely available, data indicates a wide disparity in the percentages of fully vaccinated individuals by state, and fully vaccinated individuals continue to experience breakthrough SARS–CoV–2 infections; 53 and (4) certain variables, including the reopening of schools and cold weather seasonal changes, are likely to cause an increase in COVID–19 infections.54 Health experts are still learning how easily variants of the virus can be transmitted and how effectively the currently approved and authorized vaccines provide protection. Prior to the expiration of this extension to the temporary rule with modification, DHS will again evaluate the public health concerns and resource allocations to determine if another extension is appropriate to further the goals of promoting public safety. If necessary, DHS would publish any such extension via a rulemaking in the Federal Register. IV. Regulatory Requirements A. Administrative Procedure Act (APA) DHS is issuing this extension, including the modification to allow, in USCIS’ discretion, an applicant for asylum to provide an interpreter when a USCIS interpreter is unavailable, as a temporary final rule pursuant to the APA’s ‘‘good cause’’ exception. 5 U.S.C. 553(b)(B). DHS may forgo notice-andcomment rulemaking and a delayed effective date because the APA provides an exception from those requirements when an agency ‘‘for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.’’ 5 U.S.C. 553(b)(B); see 5 U.S.C. 553(d)(3). The good cause exception for forgoing notice-and-comment rulemaking ‘‘excuses notice and comment in emergency situations, or where delay could result in serious harm.’’ Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004). Although the good cause exception is ‘‘narrowly construed and only reluctantly countenanced,’’ Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C. Cir 1992), DHS has appropriately invoked the exception in this case, for the reasons set forth in this 52 CDC, Delta Variant: What We Know About the Science. 53 CDC, MMWR; CDC, COVID Data Tracker— COVID–19 Vaccinations in the United States. 54 CDC, COVID–19 Forecasts: Cases; NIH, The role of seasonality in the spread of COVID–19 pandemic; Johns Hopkins Bloomberg School of Public Health, Will There be a Fall 2021 Resurgence of COVID–19 in the U.S.? (June 17, 2021), https:// publichealth.jhu.edu/2021/will-there-be-a-fall-2021resurgence-of-covid-19-in-the-us. E:\FR\FM\17SER1.SGM 17SER1 51786 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations temporary final rule. Additionally, on multiple occasions, agencies have relied on this exception to promulgate both communicable disease-related 55 and immigration-related 56 interim rules, as well as extend such rules.57 DHS is publishing this second extension, with modification, as a temporary final rule because of the continuing COVID–19 crisis and incorporates into this extension with modification the discussion of good cause from the original and extension temporary rules. As discussed earlier in this preamble, on February 24, 2021, President Biden issued a notice on the continuation of the state of the National Emergency concerning the COVID–19 pandemic.58 Effective July 20, 2021, the Secretary of Health and Human Services renewed the determination that ‘‘a public health emergency exists and has existed since January 27, 2020 nationwide.’’ 59 55 HHS Control of Communicable Diseases; Foreign Quarantine, 85 FR 7874 (Feb. 12, 2020) (interim final rule to enable the CDC ‘‘to require airlines to collect, and provide to CDC, certain data regarding passengers and crew arriving from foreign countries for the purposes of health education, treatment, prophylaxis, or other appropriate public health interventions, including travel restrictions’’); Control of Communicable Diseases; Restrictions on African Rodents, Prairie Dogs, and Certain Other Animals, 68 FR 62353 (Nov. 4, 2003) (interim final rule to modify restrictions to ‘‘prevent the spread of monkeypox, a communicable disease, in the United States.’’). 56 See, e.g., Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended, 81 FR 5906, 5907 (Feb. 04, 2016) (interim rule citing good cause to immediately require a passport and visa from certain H2–A Caribbean agricultural workers to avoid ‘‘an increase in applications for admission in bad faith by persons who would otherwise have been denied visas and are seeking to avoid the visa requirement and consular screening process during the period between the publication of a proposed and a final rule’’); Suspending the 30-Day and Annual Interview Requirements From the Special Registration Process for Certain Nonimmigrants, 68 FR 67578, 67581 (Dec. 02, 2003) (interim rule claiming the good cause exception for suspending certain automatic registration requirements for nonimmigrants because ‘‘without [the] regulation approximately 82,532 aliens would be subject to 30day or annual re-registration interviews’’ over a sixmonth period). 57 See, e.g., Temporary Changes to Requirements Affecting H–2A Nonimmigrants Due to the COVID– 19 National Emergency: Partial Extension of Certain Flexibilities, 85 FR 51304 (Aug. 20, 2020) (temporary final rule extending April 20, 2020 temporary final rule); CDC, Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID–19, 86 FR 34010 (July 01, 2021) (extension order). 58 86 FR 11599. 59 HHS, Renewal of Determination that a Public Health Emergency Exists (July 19, 2021), https:// www.phe.gov/emergency/news/healthactions/phe/ Pages/COVID-19July2021.aspx; HHS, Renewal of Determination that a Public Health Emergency Exists (July 19, 2021); Notice on the Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID–19) Pandemic; Proclamation 9994 of March 13, 2020, Declaring a VerDate Sep<11>2014 15:31 Sep 16, 2021 Jkt 253001 As of September 9, 2021, there have been approximately 222,406,582 cases of COVID–19 identified globally, resulting in approximately 4,592,934 deaths; approximately 40,152,521 cases have been identified in the United States, with about 1,297,399 new cases being identified in the 7 days preceding September 5th, and approximately 646,131 reported deaths due to the disease.60 In the week preceding September 5th, the United States was the country that reported the highest number of new cases, with a 38 percent increase.61 Additionally, at least four notable variants of the virus that causes COVID– 19 have been reported in the United States, including the now predominant Delta variant.62 Evidence suggests that these variants may spread faster and more easily than others and at least one variant may be associated with an increased risk of death.63 Although vaccines are now widely accessible, there is wide disparity in the percentages of vaccinated individuals by state,64 and experts still do not know the percentage needed to reach herd immunity, as well as how effective the vaccines are against new variants, and how long vaccines protect people.65 Ongoing research demonstrates that while there is high vaccine effectiveness, fully vaccinated individuals continue to experience breakthrough COVID–19 infections and may be either symptomatic or asymptomatic.66 As of April 30, 2021, 10,262 SARS–CoV–2 breakthrough infections were reported from 46 U.S. states and territories.67 This data is limited, however, because most breakthrough infections are voluntarily reported, and on May 1, 2021, CDC began tracking breakthrough infections only where a patient is hospitalized or dies.68 As of August 30, 2021, CDC received reports from 49 U.S. states and territories of 12,908 patients with SARS–CoV–2 breakthrough infections who were hospitalized or died.69 The provision allowing an applicant for asylum, in USCIS’ discretion, to National Emergency Concerning the Coronavirus Disease (COVID–19) Outbreak. 60 WHO, WHO Coronavirus (COVID–19) Dashboard; WHO, Weekly Epidemiological Update. 61 WHO, WHO Coronavirus (COVID–19) Dashboard. 62 CDC, Variants of the Virus. 63 CDC, Variants of the Virus. 64 CDC, COVID Date Tracker. 65 CDC, Key Things to Know About COVID–19 Vaccines. 66 CDC, MMWR. 67 Id. 68 Id. 69 CDC, COVID–19 Vaccine Breakthrough Case Investigation and Reporting. PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 provide an interpreter when a USCIS interpreter is unavailable, is a measure that allows USCIS and the applicant for asylum to proceed with the interview under the same COVID–19 mitigation procedures that are employed when accommodating other participants in the asylum interview. As previously discussed in Section III of the preamble, the COVID–19 pandemic is a rapidly changing situation, and it is difficult to anticipate how the disruptions caused by the crisis will manifest themselves. Given the unique nature of the pandemic and the multiple challenges it has presented in the context of USCIS operations, the agency has had to modify its policies and procedures to adapt to the COVID–19 public health emergency. USCIS expects the provision to allow USCIS to address this rapidly changing situation caused by the COVID–19 pandemic with more flexibility to best respond to the continuing stream of new asylum applications and the need to adjudicate them promptly. As stated previously, competing demands in other caseloads, contractor availability, and an increased demand for certain languages, have impacted USCIS’ ability to consistently provide contract interpreters to applicants at the time of the interview. Throughout the COVID–19 pandemic, USCIS has continued to experience an increase in the affirmative caseload, which, in turn, has created challenges in accommodating the interpretation needs of asylum applicants. Surges in other case types have also required USCIS to divert contract interpreter resources away from affirmative asylum. These increases necessitate an immediate change to address a growing and more diverse population of applicants requesting asylum and needing interpreters. As discussed in Section III of the preamble, an applicant who either does not speak or elects to speak a language not on the GSA Schedule is required to bring his or her own interpreter to the interview who is fluent in English and the elected language not on the GSA Schedule. Allowing an asylum applicant, in USCIS’ discretion, to provide an interpreter when a USCIS interpreter is unavailable, is the equivalent to and is consistent with the practice of allowing an applicant to do the same when a USCIS interpreter is available. It is also unnecessary to seek comment on the change this temporary rule makes to now allow, in USCIS’ discretion, an asylum applicant to provide an interpreter when a USCIS interpreter is unavailable, because the obligation of the applicant will not have E:\FR\FM\17SER1.SGM 17SER1 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations changed, the applicant will benefit from being allowed to bring their own interpreter, and the applicant would be in the same position they would have been without this action. For the reasons stated, including the need to be responsive to the operational demands and challenges caused by the ongoing COVID–19 pandemic, DHS believes it has good cause to determine that ordinary notice and comment procedure is impracticable for this temporary action, including the modification, and that moving expeditiously to make this change is in the best interest of the public. Based on the continuing health emergency, DHS has renewed mask guidelines and other mitigation measures, and concluded that the good cause exceptions in 5 U.S.C. 553(b)(B) and (d)(3) apply to this temporary final rule extension with modification. Delaying implementation of this rule until the conclusion of notice-andcomment procedures and the 30-day delayed effective date would be impracticable and contrary to the public interest due to the need to continue agency operations, while continuing to mitigate the risks associated with the spread of COVID–19. Additionally, certain variables, including the reopening of schools, cold weather seasonal changes, and the annual influenza, are likely to cause an increase in infections. As of August 8, 2021, USCIS had 406,801 asylum applications, on behalf of 638,893 noncitizens, pending final adjudication. Over 94 percent of these pending applications are awaiting an interview by an asylum officer. The USCIS backlog will continue to increase at a faster pace if USCIS is unable to safely and efficiently conduct asylum interviews.70 This temporary final rule extension with modification is promulgated as a response to COVID–19 and emerging variants. It is temporary, limited in application to only those asylum applicants who cannot proceed with the interview in English, and narrowly tailored to mitigate the spread of COVID–19. To not extend such a measure could cause serious and farreaching public safety and health effects. 70 DHS recognizes that the backlog has increased since the original temporary final rule was extended; however, if all applicants were required to bring their own interpreter as was done preCOVID–19, the interpreter would generally have to sit in a separate office during the interview to mitigate potential COVID–19 exposure, thereby reducing available office space to schedule additional interviews in a safe manner. This would likely increase the backlog at a faster rate than under this rule. VerDate Sep<11>2014 15:31 Sep 16, 2021 Jkt 253001 B. Regulatory Flexibility Act The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). A regulatory flexibility analysis is not required when a rule is exempt from notice-and-comment rulemaking. C. Unfunded Mandates Reform Act of 1995 This temporary final rule extension with modification will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. D. Congressional Review Act OMB’s Office of Information and Regulatory Affairs has determined that this action is not a major rule as defined by Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (also known as the Congressional Review Act). 5 U.S.C. 804(2). This rule will 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 on the ability of United States-based enterprises to compete with foreignbased enterprises in domestic and export markets. E. Executive Order 12866 Executive Order 13563 Executive Orders (E.O.) 12866 and 13563 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This rule is designated a significant regulatory action under E.O. 12866. Accordingly, the Office of Management and Budget (OMB) has reviewed this regulation. DHS, however, is proceeding under the emergency PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 51787 provision of Executive Order 12866 Section 6(a)(3)(D) based on the need to move expeditiously during the current public health emergency. This action will continue to help asylum applicants proceed with their interviews in a safe manner, while protecting agency staff. As a result of the first temporary rule extension, between March 10, 2021, and August 8, 2021, USCIS conducted 9,136 asylum interviews, with interpreters available telephonically. This second extension of the temporary rule with modification is not expected to result in any additional costs to the government. In addition, even with the provision that would permit, at USCIS’ discretion, an applicant for asylum to provide an interpreter when a contract interpreter is unavailable, there are no additional costs to the applicant relative to what would be the requirements if the earlier temporary final rule (TFR) were not extended. As discussed previously in Section III of the preamble, in those limited circumstances where a USCIS interpreter is unavailable and USCIS permits the applicant to provide their own interpreter, the interpreter will be required to follow USCIS COVID–19 protocols in place at the time of the interview, including, but not limited to, sitting in a separate office. Following those COVID–19 protocols will not result in any additional costs for either the applicant or the interpreter. As previously explained, the contract interpreters will be provided at no cost to the applicant. USCIS already has an existing contract to provide telephonic interpretation and monitoring in interviews for all of its case types. USCIS has provided monitors for many years. Almost all interviews that utilize a USCIS provided interpreter after this rulemaking would have had a contracted monitor under the status quo. As the cost of monitoring and interpretation are identical under the contract and monitors will no longer be needed for these contract interpreter interviews, the extension of this portion of this rule is projected to be cost neutral or negligible as USCIS is already paying for these services even without this rule. USCIS anticipates that there would only be limited circumstances where a contract interpreter would be unavailable. As previously discussed in Section III of the preamble, in those limited circumstances where a contract interpreter is unavailable, USCIS will either reschedule the interview and attribute the interview delay to USCIS for the purposes of employment authorization pursuant to 8 CFR 208.7, or USCIS may, in its discretion, allow E:\FR\FM\17SER1.SGM 17SER1 51788 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations the applicant to provide an interpreter. In such cases, the applicant would be in the same position they would have been without this action. DHS recognizes there are both quantitative and qualitative benefits that could be realized by providing an applicant for asylum the opportunity to bring their own interpreter when a contract interpreter is unavailable, such as the costs avoided that would be incurred through rescheduling if a contract interpreter is unavailable—both for the applicant and USCIS, and the overall positive effect on applicants of having their asylum application timely adjudicated. Once this rule is no longer in effect, asylum applicants unable to proceed with an interview before a USCIS asylum officer in English will again be required to provide their own interpreters under 8 CFR 208.9(g). F. Executive Order 13132 (Federalism) This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. G. Executive Order 12988 (Civil Justice Reform) This rule meets the applicable standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988. H. Paperwork Reduction Act This rule does not propose new, or revisions to existing, ‘‘collection[s] of information’’ as that term is defined under the Paperwork Reduction Act of 1995, Public Law 104–13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320. As this action would only span 180 days, USCIS does not anticipate a need to update the Form I–589, Application for Asylum and for Withholding of Removal, despite the existing language on the form instructions regarding interpreters, because it will be primarily rescheduling interviews that were cancelled due to COVID–19. USCIS will post updates on its I–589 website, https://www.uscis.gov/i-589, and other asylum and relevant web pages regarding the new interview requirements in this regulation, as well as provide personal notice to applicants via the interview notices issued to applicants prior to their interview. VerDate Sep<11>2014 15:31 Sep 16, 2021 Jkt 253001 List of Subjects in 8 CFR Part 208 Administrative practice and procedure, Aliens, Immigration, Reporting and recordkeeping requirements. Accordingly, for the reasons set forth in the preamble, the Secretary of Homeland Security amends 8 CFR part 208 as follows: PART 208—PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL 1. The authority citation for part 208 continues to read as follows: ■ Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title VII of Pub. L. 110– 229; 8 CFR part 2; Pub. L. 115–218. 2. Effective from September 20, 2021, through March 16, 2022, amend § 208.9 by revising paragraphs (h) introductory text and (h)(1)(i) to read as follows: ■ § 208.9 Procedure for interview before an asylum officer. * * * * * (h) Asylum applicant interpreters. For asylum interviews conducted between September 21, 2021, through March 16, 2022: (1) * * * (i) If a USCIS interpreter is unavailable, USCIS will either reschedule the interview and attribute the interview delay to USCIS for the purposes of employment authorization pursuant to § 208.7, or USCIS may, in its discretion, allow the applicant to provide an interpreter. * * * * * Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security. [FR Doc. 2021–20161 Filed 9–16–21; 8:45 am] BILLING CODE 9111–97–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA–2021–0263; Project Identifier AD–2020–01702–T; Amendment 39–21710; AD 2021–18–09] RIN 2120–AA64 Airworthiness Directives; The Boeing Company Airplanes Federal Aviation Administration (FAA), DOT. ACTION: Final rule. AGENCY: The FAA is adopting a new airworthiness directive (AD) for all The SUMMARY: PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 Boeing Company Model 777 airplanes. This AD was prompted by a report that an operator found solid rivets with missing heads at the left buttock line 25 on the sloping pressure deck web. This AD requires doing a detailed inspection of the left- and right-side sloping pressure deck at certain stations for any damaged solid rivets, and applicable oncondition actions. The FAA is issuing this AD to address the unsafe condition on these products. DATES: This AD is effective October 22, 2021. The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of October 22, 2021. ADDRESSES: For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110–SK57, Seal Beach, CA 90740–5600; telephone 562–797–1717; internet https://www.myboeingfleet.com. You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206–231–3195. It is also available at https:// www.regulations.gov by searching for and locating Docket No. FAA–2021– 0263. Examining the AD Docket You may examine the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA–2021–0263; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, any comments received, and other information. The address for Docket Operations is U.S. Department of Transportation, Docket Operations, M– 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Luis Cortez, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: (206) 231–3958; email: Luis.A.Cortez-Muniz@faa.gov. SUPPLEMENTARY INFORMATION: Background The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 777 airplanes. The NPRM published in the Federal Register on April 9, 2021 (86 FR 18479). The NPRM was E:\FR\FM\17SER1.SGM 17SER1

Agencies

[Federal Register Volume 86, Number 178 (Friday, September 17, 2021)]
[Rules and Regulations]
[Pages 51781-51788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20161]



========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

========================================================================


Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / 
Rules and Regulations

[[Page 51781]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

[CIS No. 2671-20; DHS Docket No. USCIS-2020-0017]
RIN 1615-AC59


Asylum Interview Interpreter Requirement Modification Due to 
COVID-19

AGENCY: U.S. Citizenship and Immigration Services (USCIS), Department 
of Homeland Security (DHS).

ACTION: Temporary final rule; extension.

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

SUMMARY: The Department of Homeland Security (DHS) is extending for a 
second time the effective date (for 180 days) of its temporary final 
rule that modified certain regulatory requirements to help ensure that 
USCIS may continue with affirmative asylum adjudications during the 
COVID-19 pandemic. This rule also provides that if a USCIS interpreter 
is unavailable, USCIS will either reschedule the interview and 
attribute the interview delay to USCIS for the purposes of the asylum 
employment authorization regulation, or USCIS may, in its discretion, 
allow the applicant to provide an interpreter.

DATES: This temporary final rule is effective from September 20, 2021, 
through March 16, 2022. As of September 20, 2021, the expiration date 
of the temporary final rule published at 85 FR 59655 (Sept. 23, 2020), 
which was extended at 86 FR 15072 (Mar. 22, 2021), is further extended 
from September 20, 2021, to March 16, 2022.

FOR FURTHER INFORMATION CONTACT: Andria Strano, Acting Chief, Division 
of Humanitarian Affairs, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
5900 Capital Gateway Drive, Camp Springs, MD 20588-0009; telephone 
(240) 721-3000 (not a toll-free call).
    Individuals with hearing or speech impairments may access the 
telephone numbers above via TTY by calling the toll-free Federal 
Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

I. Legal Authority To Issue This Rule and Other Background

A. Legal Authority

    The Secretary of Homeland Security (Secretary) takes this action 
pursuant to his authorities concerning asylum determinations. The 
Homeland Security Act of 2002 (HSA), Public Law 107-296, as amended, 
transferred many functions related to the execution of Federal 
immigration law to the newly created DHS. The HSA amended the 
Immigration and Nationality Act (INA or the Act), charging the 
Secretary ``with the administration and enforcement of this chapter and 
all other laws relating to the immigration and naturalization of 
aliens,'' INA 103(a)(1), 8 U.S.C. 1103(a)(1), and granted the Secretary 
the power to take all actions ``necessary for carrying out'' the 
immigration laws, including the INA, id. 1103(a)(3). The HSA also 
transferred to DHS responsibility for affirmative asylum applications 
made outside the removal context. See 6 U.S.C. 271(b)(3). That 
authority has been delegated within DHS to U.S. Citizenship and 
Immigration Services (USCIS). USCIS asylum officers determine, in the 
first instance, whether a noncitizen's affirmative asylum application 
should be granted. See 8 CFR 208.4(b), 208.9. With limited exception, 
the Department of Justice Executive Office for Immigration Review has 
exclusive authority to adjudicate asylum applications filed by 
noncitizens who are in removal proceedings. See INA 103(g), 240; 8 
U.S.C. 1103(g), 1229a. This broad division of functions and authorities 
informs the background of this rule.

B. Legal Framework for Asylum

    Asylum is a discretionary benefit that generally can be granted to 
eligible noncitizens who are physically present or who arrive in the 
United States, irrespective of their status, subject to the 
requirements in section 208 of the INA, 8 U.S.C. 1158, and implementing 
regulations, see 8 CFR parts 208, 1208.
    Section 208(d)(5) of the INA, 8 U.S.C. 1158(d)(5), imposes several 
mandates and procedural requirements for the consideration of asylum 
applications. Congress also specified that the Attorney General and 
Secretary of Homeland Security ``may provide by regulation for any 
other conditions or limitations on the consideration of an application 
for asylum,'' so long as those limitations are ``not inconsistent with 
this chapter.'' INA208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B). Thus, the 
current statutory framework leaves the Attorney General (and, after the 
HSA, also the Secretary) significant discretion to regulate 
consideration of asylum applications. USCIS regulations promulgated 
under this authority set agency procedures for asylum interviews, and 
require that applicants unable to communicate in English ``must 
provide, at no expense to the Service, a competent interpreter fluent 
in both English and the applicant's native language or any other 
language in which the applicant is fluent.'' 8 CFR 208.9(g). This 
requirement means that all asylum applicants who cannot communicate in 
English must bring an interpreter to their interview. Doing so, as 
required by the regulation, poses a serious health risk because of the 
COVID-19 pandemic.
    Accordingly, this temporary rule extends the temporary final rule 
published at 85 FR 59655 for a second time to continue to mitigate the 
spread of COVID-19 by seeking to slow the transmission and spread of 
the disease during asylum interviews before USCIS asylum officers. To 
that end, this temporary rule will extend the requirement in certain 
instances allowing noncitizens interviewed for this discretionary 
asylum benefit to use USCIS-provided interpreters during interviews. 
This temporary rule also provides that if a USCIS interpreter is 
unavailable, USCIS will either reschedule the interview and attribute 
the interview delay to USCIS for the purposes of employment 
authorization under 8 CFR 208.7, or USCIS may, in its discretion, allow 
the applicant to provide an interpreter.

C. The COVID-19 Pandemic

    On January 31, 2020, the Secretary of Health and Human Services 
(HHS) declared a public health emergency under section 319 of the 
Public Health Service Act (42 U.S.C. 247d), in response to COVID-19, 
which is caused

[[Page 51782]]

by the SARS-CoV-2 virus.\1\ On February 24, 2021, the President issued 
a continuation of the National Emergency concerning the COVID-19 
pandemic.\2\ Effective July 20, 2021, HHS renewed the determination 
that ``a public health emergency exists and has existed since January 
27, 2020 nationwide.'' \3\ A more detailed background discussion of the 
COVID-19 pandemic is found in the original temporary rule, as well as 
in the first extension of this rule, and USCIS incorporates the 
discussions of the pandemic into this extension with modification. 85 
FR 59655; 85 FR 15072.
---------------------------------------------------------------------------

    \1\ HHS, Determination that a Public Health Emergency Exists 
(Jan. 31, 2020), https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx.
    \2\ Notice on the Continuation of the National Emergency 
Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 86 FR 
11599 (Feb. 26, 2021); Proclamation 9994 of March 13, 2020, 
Declaring a National Emergency Concerning the Coronavirus Disease 
(COVID-19) Outbreak, 85 FR 15337 (Mar. 18, 2020).
    \3\ HHS, Renewal of Determination that a Public Health Emergency 
Exists (July 19, 2021), https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVID-19July2021.aspx.
---------------------------------------------------------------------------

    Since publication of the original temporary rule and first 
extension, several variants of the virus that causes COVID-19 have 
been, and continue to be, reported in the United States.\4\ Evidence 
suggests that these variants may spread more quickly and easily than 
others and at least one variant may be associated with an increased 
risk of death.\5\ The COVID-19 Delta variant was first found in India 
in October 2020.\6\ Cases were discovered in the United States in late 
January 2021, and Delta has quickly become the predominant virus strain 
in the United States.\7\ It was labeled a Variant of Concern (VOC) by 
the HHS SARS-CoV-2 Interagency Group (SIG), which defines VOCs as those 
with evidence of increased transmissibility and severe disease, reduced 
effectiveness of treatments or vaccines, and diagnostic detection 
failures.\8\
---------------------------------------------------------------------------

    \4\ Centers for Disease Control and Prevention (CDC), SARS-CoV-2 
Variant Classifications and Definitions (Aug. 3, 2021), https://www.cdc.gov/coronavirus/2019-ncov/variants/variant-info.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-updates%2Fvariant-surveillance%2Fvariant-info.html.
    \5\ CDC, Variants of the Virus (July 29, 2021), https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html.
    \6\ Cov-Lineages, Global Lineage Report: B.1.617.2 (May 19, 
2021); CDC, SARS-CoV-2 Variant Classifications and Definitions (Aug. 
03, 2021); CDC, Delta Variant: What We Know About the Science (Aug. 
06, 2021), https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html.
    \7\ Id.
    \8\ Id.
---------------------------------------------------------------------------

    As of September 9, 2021, there have been approximately 222,406,582 
cases of COVID-19 identified globally, resulting in approximately 
4,592,934 deaths. Approximately 40,152,521 cases have been identified 
in the United States, with about 1,297,399 new cases identified in the 
7 days preceding September 5th, and approximately 646,131 reported 
deaths due to the disease.\9\ In the week preceding September 5th, the 
United States was the country that reported the highest number of new 
cases, with a 38 percent increase.\10\
---------------------------------------------------------------------------

    \9\ World Health Organization (WHO), Weekly epidemiological 
update--7 September 2021 (Sept. 07, 2021), available at https://www.who.int/publications/m/item/weekly-epidemiological-update-on-covid-19--7-september-2021; WHO, WHO Coronavirus (COVID-19) 
Dashboard (Sept. 09, 2021), https://covid19.who.int/.
    \10\ WHO, Weekly epidemiological update.
---------------------------------------------------------------------------

    On August 23, 2021, the U.S. Food and Drug Administration (FDA) 
granted approval for the Pfizer-BioNTech COVID-19 vaccine for 
individuals 16 years and older, now marketed as Comirnaty.\11\ Prior to 
this, the FDA had issued emergency use authorizations (EUAs) for three 
COVID-19 vaccines, including the Pfizer-BioNTech vaccine.\12\ The two 
other vaccines that continue to be authorized for emergency use are 
produced by Moderna and Janssen.\13\ The Pfizer-BioNTech and Moderna 
vaccines require two doses to be effective at preventing COVID-19 
illness.\14\ The Janssen vaccine is a single dose.\15\ As of September 
9, 2021, approximately 177,433,044 people in the United States had 
completed a COVID-19 vaccination regimen.\16\ While the vaccine is now 
widely accessible in the United States, geographic data indicates a 
wide disparity in the percentages of fully vaccinated individuals by 
state, ranging from 39.6 percent in Alabama to 68.4 percent in Vermont, 
not taking into account United States territories.\17\ Health experts 
still do not know what percentage of people in the U.S. will need to be 
vaccinated before enough individuals in the community are protected to 
meaningfully reduce the spread of the disease from person to person, 
how effective the vaccines are against new variants, and how long the 
vaccines protect people.\18\ Furthermore, hospitalization and 
mechanical respiratory support may still be required in severe cases of 
COVID-19 illness, irrespective of vaccination status.\19\
---------------------------------------------------------------------------

    \11\ FDA, FDA Approves First COVID-19 Vaccine (Aug. 23, 2021), 
https://www.fda.gov/news-events/press-announcements/fda-approves-first-covid-19-vaccine.
    \12\ FDA, Learn More About COVID-19 Vaccines From the FDA 
(content current as of July 12, 2021), https://www.fda.gov/consumers/consumer-updates/learn-more-about-covid-19-vaccines-fda.
    \13\ Id. Janssen Biotech Inc., the manufacturer of the third 
vaccine granted an EUA by the FDA, is a Janssen Pharmaceutical 
Company of Johnson & Johnson.
    \14\ CDC, Moderna COVID-19 Vaccine Overview and Safety (updated 
June 11, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/Moderna.html; CDC, Pfizer-BioNTech COVID-19 
Vaccine Overview and Safety (updated June 24, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/Pfizer-BioNTech.html.
    \15\ CDC, Johnson & Johnson's Janssen COVID-19 Vaccine Overview 
and Safety (updated June 23, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/janssen.html.
    \16\ CDC, COVID Data Tracker--COVID-19 Vaccinations in the 
United States (Sept. 09, 2021), https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total.
    \17\ Id.
    \18\ CDC, Key Things to Know About COVID-19 Vaccines (updated 
June 25, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fvaccines%2F8-things.html.
    \19\ National Insitutes of Health (NIH), COVID-19 Treatment 
Guidelines: Care of Critically Ill Adult Patients with COVID-19 
(July 08, 2021), https://www.covid19treatmentguidelines.nih.gov/management/critical-care/summary-recommendations/.
---------------------------------------------------------------------------

    Ongoing research demonstrates that while there is high vaccine 
effectiveness, fully vaccinated individuals continue to experience 
breakthrough COVID-19 infections and may be either symptomatic or 
asymptomatic.\20\ As of April 30, 2021, approximately 10,262 
breakthrough infections were reported from 46 U.S. states and 
territories.\21\ This is likely a substantial undercount of cases, as 
CDC states that the current national surveillance system relies on 
voluntary reporting and data are only available for a small segment of 
reported cases.\22\ The data are further limited because on May 01, 
2021, the CDC transitioned from tracking all reported COVID-19 vaccine 
breakthrough infections to only those among patients who are 
hospitalized or die.\23\ As of August 30, 2021, CDC data from 49 U.S. 
states and territories indicates 12,908 patients with patients with 
SARS-CoV-2 breakthrough infections were hospitalized or died.\24\ 
Testing is available to confirm suspected cases of COVID-19 infection. 
At present, the time it takes to receive

[[Page 51783]]

results varies based on, among other factors, type of test used, 
laboratory capacity, and geographic location.\25\ CDC guidance states 
that individuals who were exposed to a person with COVID-19 may later 
develop symptoms and should self-quarantine for 14 days, even with 
receipt of negative test results.\26\
---------------------------------------------------------------------------

    \20\ CDC, Morbidity and Mortality Weekly Report (MMWR): COVID-19 
Vaccine Breakthrough Infections Reported to CDC--United States, 
January 1-April 30, 2021 (May 28, 2021), https://www.cdc.gov/mmwr/volumes/70/wr/mm7021e3.htm.
    \21\ Id.
    \22\ Id.
    \23\ Id.
    \24\ CDC, COVID-19 Vaccine Breakthrough Case Investigation and 
Reporting (Sept. 01, 2021), https://www.cdc.gov/vaccines/covid-19/health-departments/breakthrough-cases.html.
    \25\ CDC, Overview of Testing for SARS-CoV-2 (COVID-19) (Aug. 
02, 2021), https://www.cdc.gov/coronavirus/2019-ncov/hcp/testing-overview.html.
    \26\ CDC, Test for Current Infection (Viral Test) (Aug. 02, 
2021), https://www.cdc.gov/coronavirus/2019-ncov/testing/diagnostic-testing.html.
---------------------------------------------------------------------------

    There are also multiple variants of the virus that have resulted in 
COVID-19 infections in the United States, including the now predominant 
Delta variant.\27\ While vaccination is key in preventing severe 
disease like hospitalization or death, it may be less effective in 
preventing infection or transmission of the Delta variant since it is 
more contagious.\28\ Significant Delta variant-related outbreaks have 
occurred in the United States in recent months, most recently in 
Massachusetts after multiple large-scale summer events were held from 
July 3-17, 2021.\29\ After these events, 469 individuals contracted the 
virus, 74 percent of whom were fully vaccinated, and the outbreak was a 
major catalyst in the CDC's subsequent guidance to resume indoor mask 
mandates.\30\ According to statistical models and genomic surveillance 
programs, the Delta variant now accounts for approximately 98.9 percent 
of new cases nationally and current data shows that it is having a 
disproportionately severe impact on unvaccinated populations.\31\
---------------------------------------------------------------------------

    \27\ CDC, SARS-CoV-2 Variant Classifications and Definitions; 
Cov-Lineages, Global Lineage Report: B.1.617.2.
    \28\ CDC, Delta Variant: What We Know About the Science.
    \29\ CDC, Outbreak of SARS-CoV-2 Infections, Including COVID-19 
Vaccine Breakthrough Infections, Associated with Large Public 
Gatherings--Barnstable County, Massachusetts, July 2021 (Aug. 06, 
2021), www.cdc.gov/mmwr/volumes/70/wr/mm7031e2.htm.
    \30\ Id.
    \31\ CDC, COVID Data Tracker: Variant Proportions (Sept. 07, 
2021), https://covid.cdc.gov/covid-data-tracker/#variant-proportions; CDC, Delta Variant: What We Know About the Science.
---------------------------------------------------------------------------

    There are numerous challenges to resuming pre-COVID-19 operations, 
largely due to the emergence of the Delta variant. CDC has posted 
guidance for states, businesses, and the general public emphasizing the 
need for continued mask mandates on public transportation and 
airplanes, as wearing masks that completely cover the mouth and nose 
reduces the spread of COVID-19.\32\ CDC is also encouraging restaurants 
and bars to maintain social distancing and mask rules and asking 
individuals to avoid large events and gatherings.\33\ As a result of 
CDC's renewed mask guidance, the Office of Management and Budget (OMB) 
issued renewed mask guidelines on July 27, 2021, for employees, 
contractors, and visitors to Federal buildings which went into effect 
for DHS on July 28, 2021.\34\
---------------------------------------------------------------------------

    \32\ CDC, Requirement for Face Masks on Public Transportation 
Conveyances and at Transportation Hubs (Aug. 27, 2021), https://www.cdc.gov/coronavirus/2019-ncov/travelers/face-masks-public-transportation.html.
    \33\ CDC, Public Health Guidance for Potential COVID-19 Exposure 
Associated with Travel (July 02, 2021), https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html; CDC, Guidance for 
Organizing Large Events and Gatherings (May 20, 2021), https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/considerations-for-events-gatherings.html; CDC, Considerations for 
Restaurant and Bar Operators (June 14, 2021), https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/business-employers/bars-restaurants.html.
    \34\ Department of Homeland Security, Effective Immediately, 
Updated Mask Guidance for All DHS Workspaces (July 28, 2021).
---------------------------------------------------------------------------

    Further, CDC predictive modeling forecasts a continued national 
increase in new cases, hospitalizations, and deaths over four week 
intervals. By the week ending October 2, 2021, forecasts expect a 
weekly increase of approximately 430,000 to 1,520,000 new cases, 6,400 
to 19,500 new hospitalizations, and 6,900 to 18,000 new deaths, taking 
into account variations in social distancing and prevention measures 
across states. Variations beyond social distancing, including the 
reopening of schools, may also have an impact on these rates.\35\ 
Studies conducted early in the pandemic indicated low rates of 
transmission among children and as of September 9, 2021, approximately 
62.5 percent of individuals 12 years of age and older were fully 
vaccinated.\36\ Since these early studies, infection rates have 
increased as opportunities for transmission, including school and 
summer camp attendance, expanded.\37\ It has been reported that at 
least 1,000 schools across 35 states have closed for in-person learning 
because of COVID-19 since the beginning of the 2021 school year.\38\ In 
order to minimize the spread, CDC currently recommends screening, 
physical distancing, taking precautions when participating in team or 
close contact sports, and consistent mask use, as inconsistent mask 
policies have contributed to school outbreaks.\39\ Finally, as the 
annual influenza season approaches, questions and concerns over 
increased transmission of SARS-CoV-2 and decreases in immunity remain. 
CDC currently recommends a booster shot beginning in the fall of 2021 
for certain individuals who received the Pfizer or Moderna 
vaccines.).\40\ CDC's decision to begin booster shots in the fall of 
2021 is due to the current information about the vaccine effectiveness 
and the impact of variants on vaccine effectiveness.\41\ A recent study 
indicated that the infectivity and morbidity rates of COVID-19 are 
higher in colder climates and the transmissibility of the virus is 
affected by meteorological factors such as temperature and 
humidity.\42\ This, alongside the increased demand for healthcare 
resources due to seasonal influenza and the low likelihood that herd 
immunity will be achieved in 2021, should be taken into account when 
developing future intervention measures.\43\
---------------------------------------------------------------------------

    \35\ CDC, COVID-19 Forecasts: Cases (Sept. 08, 2021), https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/forecasts-cases.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-updates%2Fforecasts-cases.html; CDC, COVID-19 
Forecasts: Hospitalizations (Sept. 08, 2021), https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/hospitalizations-forecasts.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-updates%2Fhospitalizations-forecasts.html; CDC, 
COVID-19 Forecasts: Deaths (Sept. 08, 2021), https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/forecasting-us.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcovid-data%2Fforecasting-us.html.
    \36\ CDC, COVID Data Tracker--COVID-19 Vaccinations in the 
United States; CDC, Science Brief: Transmission of SARS-CoV-2 in K-
12 Schools and Early Care and Education Programs--Updated (July 09, 
2021), https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/transmission_k_12_schools.html.
    \37\ Id.
    \38\ Jeanine Santucci and Grace Hauck, At least 1,000 schools in 
35 states have closed for in-person learning since the start of the 
school year: COVID-19 updates, USA TODAY (Sept. 5, 2021), https://www.usatoday.com/story/news/health/2021/09/05/covid-updates-mu-variant-spreads-hawaii-begs-travelers-stay-away/5735064001/.
    \39\ CDC, COVID Data Tracker--COVID--19 Vaccinations in the 
United States; CDC, Science Brief: Transmission of SARS-CoV-2 in K-
12 Schools and Early Care and Education Programs--Updated (July 09, 
2021), https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/transmission_k_12_schools.html.
    \40\ CDC, COVID-19 Vaccine Booster Shot (Aug. 20, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/booster-shot.html.
    \41\ Id.
    \42\ NIH, The role of seasonality in the spread of COVID-19 
pandemic (Feb. 19, 2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7892320/.
    \43\ Id.
---------------------------------------------------------------------------

II. Purpose of This Temporary Rule

    USCIS continues its efforts to protect the health and safety of the 
employees and the public, including: Requiring facial covers for all 
employees and members of the public above the age of

[[Page 51784]]

two; \44\ limiting the number of employees and members of the public in 
the office; posting social distance guidelines and asking visitors to 
answer health screening questions before entering; currently conducting 
interviews from separate offices to ensure that employees are not in 
the same room as members of the public; and installing plexiglass where 
necessary to provide a barrier for employees when social distancing is 
not possible.
---------------------------------------------------------------------------

    \44\ Facial coverings were part of the initial USCIS COVID 
mitigation efforts until the CDC and then DHS issued new guidance on 
May 14, 2021 that fully vaccinated individuals were no longer 
required to wear masks in DHS space and that temperature checks to 
enter DHS controlled space were also to be discontinued. On July 28, 
2021, DHS issued guidance that all Federal employees, onsite 
contractors, and visitors, regardless of vaccination status or level 
of COVID transmission in the local area, are required to wear a mask 
inside all DHS workspaces and Federal buildings. Further guidance to 
the public as to the USCIS Response to COVID-19 and Operational 
Status can be found here: https://www.uscis.gov/about-us/uscis-response-to-covid-19.
---------------------------------------------------------------------------

    Between March 10, 2021, and August 8, 2021, USCIS conducted 9,136 
asylum interviews, for a total of 16,900 interviews since September 23, 
2020.\45\ The original temporary rule, implemented on September 23, 
2020, and its extension implemented on March 22, 2021, and other noted 
public safety measures have helped mitigate the impact of COVID-19 and 
have been effective in keeping our workforce and the public safe. As of 
August 9, 2021, there have been 1,927 confirmed cases of COVID-19 
exposure among USCIS employees and contractors. The USCIS exposure rate 
(6.8%) remains below the national average (10.6%) as of August 7, 2021.
---------------------------------------------------------------------------

    \45\ Between September 23, 2020 and March 10, 2021, USCIS 
conducted 7,764 asylum interviews. 86 FR at 15074.
---------------------------------------------------------------------------

    Therefore, DHS has determined that it is in the best interest of 
the public and USCIS employees and contractors to extend the temporary 
rule for another 180 days. Under this extension with modification, 
asylum applicants who are unable to proceed with the interview in 
English will ordinarily be required to proceed with government-provided 
telephonic contract interpreters provided the applicants speak one of 
the 47 languages found on the Required Languages for Interpreter 
Services Blanket Purchase Agreement/U.S. General Services 
Administration Language Schedule (``GSA Schedule''). If the applicant 
does not speak or elects to speak a language not on the GSA Schedule, 
the applicant will be required to bring his or her own interpreter who 
is fluent in English to the interview and the elected language not on 
the GSA schedule. DHS is also amending 8 CFR 208.9(h)(1) by allowing, 
in USCIS' discretion, an applicant for asylum to provide an interpreter 
when a USCIS interpreter is unavailable. Specifically, if a USCIS 
interpreter is unavailable, USCIS will either reschedule the interview 
and attribute the interview delay to USCIS for the purposes of 
employment authorization pursuant to 8 CFR 208.7, or USCIS may, in its 
discretion, allow the applicant to provide an interpreter.
    DHS incorporates into this second extension with modification, the 
justifications, as well as the discussion on the benefits of providing 
telephonic contract interpreters in reducing the risk of contracting 
COVID-19 for applicants, attorneys, interpreters, and USCIS employees 
from the original temporary rule.

III. Discussion of Regulatory Change: 8 CFR 208.9(h) 46
---------------------------------------------------------------------------

    \46\ The interpreter interview provisions can be found in two 
parallel sets of regulations: Regulations under the authority of DHS 
are contained in 8 CFR part 208; and regulations under the authority 
of the Department of Justice (DOJ) are contained in 8 CFR part 1208. 
Each set of regulations contains substantially similar provisions 
regarding asylum interview processes, and each articulates the 
interpreter requirement for interviews before an asylum officer. 
Compare 8 CFR 208.9(g), with 8 CFR 1208.9(g). This temporary final 
rule revises only the DHS regulations at 8 CFR 208.9. 
Notwithstanding the language of the parallel DOJ regulations in 8 
CFR 1208.9, as of the effective date of this action, the revised 
language of 8 CFR 208.9(h) is binding on DHS and its adjudications 
for 180 days. DHS would not be bound by the DOJ regulation at 8 CFR 
1208.9(g).
---------------------------------------------------------------------------

    DHS has determined that there are reasonable grounds for 
considering potential exposure to SARS-CoV-2, including any emerging 
variants, as a public health concern and that these grounds are 
sufficient to continue to modify the interpreter requirement for asylum 
applicants to lower the number of in-person attendees at asylum 
interviews. For 180 days following publication of this temporary final 
rule, DHS will continue to require non-English speaking asylum 
applicants appearing before USCIS to proceed with the asylum interview 
using USCIS' interpreter services if they are fluent in one of the 47 
languages as discussed in the temporary rule at 85 FR at 59657.\47\ DHS 
is also amending 8 CFR 208.9(h)(1) by allowing, in USCIS' discretion, 
an applicant for asylum to provide an interpreter when a USCIS 
interpreter is unavailable. In these limited circumstances, if a USCIS 
interpreter is unavailable, USCIS will either reschedule the interview 
and attribute the interview delay to USCIS for the purposes of 
employment authorization pursuant to 8 CFR 208.7, or USCIS may, in its 
discretion, allow the applicant to provide an interpreter. The 
interpreter will be required to follow USCIS COVID-19 protocols in 
place at the time of the interview, including sitting in a separate 
office. Once this rule is no longer in effect, asylum applicants unable 
to proceed with an interview in English before a USCIS asylum officer 
will be required to provide their own interpreters under 8 CFR 
208.9(g).
---------------------------------------------------------------------------

    \47\ DHS notes that this extension does not modify 8 CFR 
208.9(g); rather the extension temporary rule is written so that any 
asylum interviews occurring while the temporary rule is effective 
will be bound by the requirements at 8 CFR 208.9(h).
---------------------------------------------------------------------------

    Allowing an applicant for asylum to provide an interpreter when a 
USCIS interpreter is unavailable is important and to the benefit of the 
applicant for several reasons. In some instances, due to a variety of 
issues including competing demands in other caseloads, contractor 
availability, and an increased demand for certain languages, USCIS may 
have knowledge in advance of the interview, that a contract interpreter 
will not be available for a certain language during the time of the 
interview. In those instances, USCIS may notify the applicant that an 
interpreter is unavailable and give the applicant an opportunity to 
provide their own interpreter for that interview and not cause further 
delay in the case. This will help reduce unnecessary reschedules and 
prolonged delays and will help alleviate the burden rescheduling the 
interview could place on all parties involved, including the applicant, 
the applicant's representative (if applicable), and the local USCIS 
office. Providing advance notice of the unavailability of an 
interpreter and the opportunity for applicants to provide their own 
interpreter will make the process more efficient, reduce the number of 
delays, and allow applicants to proceed with their interview. This 
modification to the government-provided telephonic interpreter 
requirement will not disadvantage applicants who cannot provide their 
own interpreter. Such an applicant would be in the same position they 
would have been without this change to the regulation, and if an 
applicant is unable to locate a competent interpreter once notified of 
the unavailability of a contract interpreter, the interview will be 
rescheduled and the reschedule delay will be attributed to USCIS for 
purposes of employment authorization.
    While USCIS cannot safely accommodate every interview being 
conducted if all applicants are required to bring an interpreter in 
person, as explained in this preamble, in these

[[Page 51785]]

limited circumstances where there is advance knowledge of the 
unavailability of a contract interpreter and an applicant is able to 
locate a competent interpreter, USCIS may, within its discretion, 
accommodate the applicant's interpreter by following the same COVID-19 
protocols in place at the time of interview that allow applicants and 
those necessary to participate in the interview to attend interviews in 
person safely. USCIS will continue to apply the COVID-19 protocols in 
place at the time of the interview, including relying on available 
technology to ensure that the officer, applicant, interpreter, 
witnesses, and legal representative sit in separate rooms to fully and 
safely participate in the interview while maintaining social 
distancing.\48\ Interpreters attending appointments with applicants 
under these limited circumstances will also be expected to follow the 
USCIS Visitor Policy requiring face coverings, maintaining social 
distancing during screening and while in USCIS space, and other 
guidance regarding exposure to COVID-19.\49\ This is consistent with 
current practices for an applicant who either does not speak a language 
on the GSA Schedule or elects to speak a language that is not on the 
GSA Schedule, and thus is required to bring his or her own interpreter 
to the interview who is fluent in English and the elected language (not 
on the GSA Schedule).
---------------------------------------------------------------------------

    \48\ See USCIS Response to COVID-19: Asylum Appointments, 
available at https://www.uscis.gov/about-us/uscis-response-to-covid-19.
    \49\ See USCIS Visitor Policy, available at https://www.uscis.gov/about-us/uscis-visitor-policy.
---------------------------------------------------------------------------

    This rule's modification to 8 CFR 208.9(h)(1), giving USCIS 
discretion to allow asylum applicants to bring their own interpreter 
when a contract interpreter is unavailable will help advance the 
agency's mission to fairly adjudicate immigration benefits. By building 
in flexibility for USCIS when an interpreter fluent in a language 
included in the GSA Schedule will be unavailable at the time of an 
asylum interview, USCIS will be better positioned to leverage its 
resources. In practice this will involve asylum offices evaluating 
their office space capacity and available asylum staff on a continuous 
basis to schedule cases in a manner that is consistent with social 
distancing guidelines and other noted public safety measures. Because 
USCIS will not schedule more cases than capacity permits under the 
COVID-19 guidelines, exceptions made to the government-contract 
interpreter requirement under this temporary final rule should not 
result in increased exposure or individuals occupying the same physical 
space at a given time. These practices will also help address the 
recent emergence of the Delta variant, which as previously discussed, 
presents numerous challenges to resuming pre-COVID-19 operations, and 
which can be mitigated through the safety measures currently employed 
by USCIS.\50\ USCIS will continue to employ the same space planning and 
scheduling mechanisms to factor in the limited cases where USCIS is 
unable to provide a contract interpreter. USCIS will therefore have 
more flexibility to adapt to operational demands by proactively 
addressing the needs of applicants who would otherwise remain 
uninterviewed.
---------------------------------------------------------------------------

    \50\ See Delta Variant: What We Know About the Science, 
available at https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html (last visited Aug. 31, 2021).
---------------------------------------------------------------------------

    Given the unique nature of the pandemic and the multiple challenges 
it has presented in the context of USCIS operations, the agency has had 
to modify its policies and procedures to adapt. Through the original 
temporary final rule and the first extension, USCIS adapted its 
procedures to keep the workforce and public safe while also striving to 
serve the customer. USCIS has adapted in other ways by developing 
electronic workflows for conducting interviews and completing the 
adjudication, and by monitoring language trends and interpreter 
availability. This second extension with the modification for 
applicants to bring their own interpreter under certain circumstances, 
is in keeping with the original goals of the temporary final rule, and 
gives the agency an opportunity to more effectively meet the needs of 
individuals seeking protection.
    DHS noted in the original temporary final rule and first extension 
that it would evaluate the public health concerns and resource 
allocations to determine whether to extend the rule. DHS has determined 
that extending this rule is necessary for public safety, and 
accordingly, DHS is extending this rule for 180 days unless it is 
further extended at a later date. This temporary rule continues to 
apply to all asylum interviews conducted by USCIS across the nation. 
USCIS has determined that an extension of 180 days is appropriate given 
that: (1) The pandemic is ongoing; \51\ (2) several variants of the 
virus are circulating in the United States, with the highly contagious 
Delta variant as the dominant strain; \52\ (3) while vaccines are 
widely available, data indicates a wide disparity in the percentages of 
fully vaccinated individuals by state, and fully vaccinated individuals 
continue to experience breakthrough SARS-CoV-2 infections; \53\ and (4) 
certain variables, including the reopening of schools and cold weather 
seasonal changes, are likely to cause an increase in COVID-19 
infections.\54\ Health experts are still learning how easily variants 
of the virus can be transmitted and how effectively the currently 
approved and authorized vaccines provide protection. Prior to the 
expiration of this extension to the temporary rule with modification, 
DHS will again evaluate the public health concerns and resource 
allocations to determine if another extension is appropriate to further 
the goals of promoting public safety. If necessary, DHS would publish 
any such extension via a rulemaking in the Federal Register.
---------------------------------------------------------------------------

    \51\ See 86 FR 11599; 85 FR 15337; HHS, Renewal of Determination 
that a Public Health Emergency exists.
    \52\ CDC, Delta Variant: What We Know About the Science.
    \53\ CDC, MMWR; CDC, COVID Data Tracker--COVID-19 Vaccinations 
in the United States.
    \54\ CDC, COVID-19 Forecasts: Cases; NIH, The role of 
seasonality in the spread of COVID-19 pandemic; Johns Hopkins 
Bloomberg School of Public Health, Will There be a Fall 2021 
Resurgence of COVID-19 in the U.S.? (June 17, 2021), https://publichealth.jhu.edu/2021/will-there-be-a-fall-2021-resurgence-of-covid-19-in-the-us.
---------------------------------------------------------------------------

IV. Regulatory Requirements

A. Administrative Procedure Act (APA)

    DHS is issuing this extension, including the modification to allow, 
in USCIS' discretion, an applicant for asylum to provide an interpreter 
when a USCIS interpreter is unavailable, as a temporary final rule 
pursuant to the APA's ``good cause'' exception. 5 U.S.C. 553(b)(B). DHS 
may forgo notice-and-comment rulemaking and a delayed effective date 
because the APA provides an exception from those requirements when an 
agency ``for good cause finds . . . that notice and public procedure 
thereon are impracticable, unnecessary, or contrary to the public 
interest.'' 5 U.S.C. 553(b)(B); see 5 U.S.C. 553(d)(3).
    The good cause exception for forgoing notice-and-comment rulemaking 
``excuses notice and comment in emergency situations, or where delay 
could result in serious harm.'' Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. 
Cir. 2004). Although the good cause exception is ``narrowly construed 
and only reluctantly countenanced,'' Tenn. Gas Pipeline Co. v. FERC, 
969 F.2d 1141, 1144 (D.C. Cir 1992), DHS has appropriately invoked the 
exception in this case, for the reasons set forth in this

[[Page 51786]]

temporary final rule. Additionally, on multiple occasions, agencies 
have relied on this exception to promulgate both communicable disease-
related \55\ and immigration-related \56\ interim rules, as well as 
extend such rules.\57\
---------------------------------------------------------------------------

    \55\ HHS Control of Communicable Diseases; Foreign Quarantine, 
85 FR 7874 (Feb. 12, 2020) (interim final rule to enable the CDC 
``to require airlines to collect, and provide to CDC, certain data 
regarding passengers and crew arriving from foreign countries for 
the purposes of health education, treatment, prophylaxis, or other 
appropriate public health interventions, including travel 
restrictions''); Control of Communicable Diseases; Restrictions on 
African Rodents, Prairie Dogs, and Certain Other Animals, 68 FR 
62353 (Nov. 4, 2003) (interim final rule to modify restrictions to 
``prevent the spread of monkeypox, a communicable disease, in the 
United States.'').
    \56\ See, e.g., Visas: Documentation of Nonimmigrants Under the 
Immigration and Nationality Act, as Amended, 81 FR 5906, 5907 (Feb. 
04, 2016) (interim rule citing good cause to immediately require a 
passport and visa from certain H2-A Caribbean agricultural workers 
to avoid ``an increase in applications for admission in bad faith by 
persons who would otherwise have been denied visas and are seeking 
to avoid the visa requirement and consular screening process during 
the period between the publication of a proposed and a final 
rule''); Suspending the 30-Day and Annual Interview Requirements 
From the Special Registration Process for Certain Nonimmigrants, 68 
FR 67578, 67581 (Dec. 02, 2003) (interim rule claiming the good 
cause exception for suspending certain automatic registration 
requirements for nonimmigrants because ``without [the] regulation 
approximately 82,532 aliens would be subject to 30-day or annual re-
registration interviews'' over a six-month period).
    \57\ See, e.g., Temporary Changes to Requirements Affecting H-2A 
Nonimmigrants Due to the COVID-19 National Emergency: Partial 
Extension of Certain Flexibilities, 85 FR 51304 (Aug. 20, 2020) 
(temporary final rule extending April 20, 2020 temporary final 
rule); CDC, Temporary Halt in Residential Evictions To Prevent the 
Further Spread of COVID-19, 86 FR 34010 (July 01, 2021) (extension 
order).
---------------------------------------------------------------------------

    DHS is publishing this second extension, with modification, as a 
temporary final rule because of the continuing COVID-19 crisis and 
incorporates into this extension with modification the discussion of 
good cause from the original and extension temporary rules. As 
discussed earlier in this preamble, on February 24, 2021, President 
Biden issued a notice on the continuation of the state of the National 
Emergency concerning the COVID-19 pandemic.\58\ Effective July 20, 
2021, the Secretary of Health and Human Services renewed the 
determination that ``a public health emergency exists and has existed 
since January 27, 2020 nationwide.'' \59\
---------------------------------------------------------------------------

    \58\ 86 FR 11599.
    \59\ HHS, Renewal of Determination that a Public Health 
Emergency Exists (July 19, 2021), https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVID-19July2021.aspx; HHS, Renewal of 
Determination that a Public Health Emergency Exists (July 19, 2021); 
Notice on the Continuation of the National Emergency Concerning the 
Coronavirus Disease 2019 (COVID-19) Pandemic; Proclamation 9994 of 
March 13, 2020, Declaring a National Emergency Concerning the 
Coronavirus Disease (COVID-19) Outbreak.
---------------------------------------------------------------------------

    As of September 9, 2021, there have been approximately 222,406,582 
cases of COVID-19 identified globally, resulting in approximately 
4,592,934 deaths; approximately 40,152,521 cases have been identified 
in the United States, with about 1,297,399 new cases being identified 
in the 7 days preceding September 5th, and approximately 646,131 
reported deaths due to the disease.\60\ In the week preceding September 
5th, the United States was the country that reported the highest number 
of new cases, with a 38 percent increase.\61\
---------------------------------------------------------------------------

    \60\ WHO, WHO Coronavirus (COVID-19) Dashboard; WHO, Weekly 
Epidemiological Update.
    \61\ WHO, WHO Coronavirus (COVID-19) Dashboard.
---------------------------------------------------------------------------

    Additionally, at least four notable variants of the virus that 
causes COVID-19 have been reported in the United States, including the 
now predominant Delta variant.\62\ Evidence suggests that these 
variants may spread faster and more easily than others and at least one 
variant may be associated with an increased risk of death.\63\ Although 
vaccines are now widely accessible, there is wide disparity in the 
percentages of vaccinated individuals by state,\64\ and experts still 
do not know the percentage needed to reach herd immunity, as well as 
how effective the vaccines are against new variants, and how long 
vaccines protect people.\65\
---------------------------------------------------------------------------

    \62\ CDC, Variants of the Virus.
    \63\ CDC, Variants of the Virus.
    \64\ CDC, COVID Date Tracker.
    \65\ CDC, Key Things to Know About COVID-19 Vaccines.
---------------------------------------------------------------------------

    Ongoing research demonstrates that while there is high vaccine 
effectiveness, fully vaccinated individuals continue to experience 
breakthrough COVID-19 infections and may be either symptomatic or 
asymptomatic.\66\ As of April 30, 2021, 10,262 SARS-CoV-2 breakthrough 
infections were reported from 46 U.S. states and territories.\67\ This 
data is limited, however, because most breakthrough infections are 
voluntarily reported, and on May 1, 2021, CDC began tracking 
breakthrough infections only where a patient is hospitalized or 
dies.\68\ As of August 30, 2021, CDC received reports from 49 U.S. 
states and territories of 12,908 patients with SARS-CoV-2 breakthrough 
infections who were hospitalized or died.\69\
---------------------------------------------------------------------------

    \66\ CDC, MMWR.
    \67\ Id.
    \68\ Id.
    \69\ CDC, COVID-19 Vaccine Breakthrough Case Investigation and 
Reporting.
---------------------------------------------------------------------------

    The provision allowing an applicant for asylum, in USCIS' 
discretion, to provide an interpreter when a USCIS interpreter is 
unavailable, is a measure that allows USCIS and the applicant for 
asylum to proceed with the interview under the same COVID-19 mitigation 
procedures that are employed when accommodating other participants in 
the asylum interview. As previously discussed in Section III of the 
preamble, the COVID-19 pandemic is a rapidly changing situation, and it 
is difficult to anticipate how the disruptions caused by the crisis 
will manifest themselves. Given the unique nature of the pandemic and 
the multiple challenges it has presented in the context of USCIS 
operations, the agency has had to modify its policies and procedures to 
adapt to the COVID-19 public health emergency. USCIS expects the 
provision to allow USCIS to address this rapidly changing situation 
caused by the COVID-19 pandemic with more flexibility to best respond 
to the continuing stream of new asylum applications and the need to 
adjudicate them promptly. As stated previously, competing demands in 
other caseloads, contractor availability, and an increased demand for 
certain languages, have impacted USCIS' ability to consistently provide 
contract interpreters to applicants at the time of the interview. 
Throughout the COVID-19 pandemic, USCIS has continued to experience an 
increase in the affirmative caseload, which, in turn, has created 
challenges in accommodating the interpretation needs of asylum 
applicants. Surges in other case types have also required USCIS to 
divert contract interpreter resources away from affirmative asylum. 
These increases necessitate an immediate change to address a growing 
and more diverse population of applicants requesting asylum and needing 
interpreters.
    As discussed in Section III of the preamble, an applicant who 
either does not speak or elects to speak a language not on the GSA 
Schedule is required to bring his or her own interpreter to the 
interview who is fluent in English and the elected language not on the 
GSA Schedule. Allowing an asylum applicant, in USCIS' discretion, to 
provide an interpreter when a USCIS interpreter is unavailable, is the 
equivalent to and is consistent with the practice of allowing an 
applicant to do the same when a USCIS interpreter is available. It is 
also unnecessary to seek comment on the change this temporary rule 
makes to now allow, in USCIS' discretion, an asylum applicant to 
provide an interpreter when a USCIS interpreter is unavailable, because 
the obligation of the applicant will not have

[[Page 51787]]

changed, the applicant will benefit from being allowed to bring their 
own interpreter, and the applicant would be in the same position they 
would have been without this action.
    For the reasons stated, including the need to be responsive to the 
operational demands and challenges caused by the ongoing COVID-19 
pandemic, DHS believes it has good cause to determine that ordinary 
notice and comment procedure is impracticable for this temporary 
action, including the modification, and that moving expeditiously to 
make this change is in the best interest of the public.
    Based on the continuing health emergency, DHS has renewed mask 
guidelines and other mitigation measures, and concluded that the good 
cause exceptions in 5 U.S.C. 553(b)(B) and (d)(3) apply to this 
temporary final rule extension with modification. Delaying 
implementation of this rule until the conclusion of notice-and-comment 
procedures and the 30-day delayed effective date would be impracticable 
and contrary to the public interest due to the need to continue agency 
operations, while continuing to mitigate the risks associated with the 
spread of COVID-19. Additionally, certain variables, including the 
reopening of schools, cold weather seasonal changes, and the annual 
influenza, are likely to cause an increase in infections.
    As of August 8, 2021, USCIS had 406,801 asylum applications, on 
behalf of 638,893 noncitizens, pending final adjudication. Over 94 
percent of these pending applications are awaiting an interview by an 
asylum officer. The USCIS backlog will continue to increase at a faster 
pace if USCIS is unable to safely and efficiently conduct asylum 
interviews.\70\
---------------------------------------------------------------------------

    \70\ DHS recognizes that the backlog has increased since the 
original temporary final rule was extended; however, if all 
applicants were required to bring their own interpreter as was done 
pre-COVID-19, the interpreter would generally have to sit in a 
separate office during the interview to mitigate potential COVID-19 
exposure, thereby reducing available office space to schedule 
additional interviews in a safe manner. This would likely increase 
the backlog at a faster rate than under this rule.
---------------------------------------------------------------------------

    This temporary final rule extension with modification is 
promulgated as a response to COVID-19 and emerging variants. It is 
temporary, limited in application to only those asylum applicants who 
cannot proceed with the interview in English, and narrowly tailored to 
mitigate the spread of COVID-19. To not extend such a measure could 
cause serious and far-reaching public safety and health effects.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
requires an agency to prepare and make available to the public a 
regulatory flexibility analysis that describes the effect of the rule 
on small entities (i.e., small businesses, small organizations, and 
small governmental jurisdictions). A regulatory flexibility analysis is 
not required when a rule is exempt from notice-and-comment rulemaking.

C. Unfunded Mandates Reform Act of 1995

    This temporary final rule extension with modification will not 
result in the expenditure by state, local, and tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year, and it will not significantly or uniquely affect small 
governments. Therefore, no actions were deemed necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995.

D. Congressional Review Act

    OMB's Office of Information and Regulatory Affairs has determined 
that this action is not a major rule as defined by Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (also known 
as the Congressional Review Act). 5 U.S.C. 804(2). This rule will 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 on 
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.

E. Executive Order 12866 Executive Order 13563

    Executive Orders (E.O.) 12866 and 13563 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). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. This rule 
is designated a significant regulatory action under E.O. 12866. 
Accordingly, the Office of Management and Budget (OMB) has reviewed 
this regulation. DHS, however, is proceeding under the emergency 
provision of Executive Order 12866 Section 6(a)(3)(D) based on the need 
to move expeditiously during the current public health emergency.
    This action will continue to help asylum applicants proceed with 
their interviews in a safe manner, while protecting agency staff. As a 
result of the first temporary rule extension, between March 10, 2021, 
and August 8, 2021, USCIS conducted 9,136 asylum interviews, with 
interpreters available telephonically. This second extension of the 
temporary rule with modification is not expected to result in any 
additional costs to the government. In addition, even with the 
provision that would permit, at USCIS' discretion, an applicant for 
asylum to provide an interpreter when a contract interpreter is 
unavailable, there are no additional costs to the applicant relative to 
what would be the requirements if the earlier temporary final rule 
(TFR) were not extended. As discussed previously in Section III of the 
preamble, in those limited circumstances where a USCIS interpreter is 
unavailable and USCIS permits the applicant to provide their own 
interpreter, the interpreter will be required to follow USCIS COVID-19 
protocols in place at the time of the interview, including, but not 
limited to, sitting in a separate office. Following those COVID-19 
protocols will not result in any additional costs for either the 
applicant or the interpreter.
    As previously explained, the contract interpreters will be provided 
at no cost to the applicant. USCIS already has an existing contract to 
provide telephonic interpretation and monitoring in interviews for all 
of its case types. USCIS has provided monitors for many years. Almost 
all interviews that utilize a USCIS provided interpreter after this 
rulemaking would have had a contracted monitor under the status quo. As 
the cost of monitoring and interpretation are identical under the 
contract and monitors will no longer be needed for these contract 
interpreter interviews, the extension of this portion of this rule is 
projected to be cost neutral or negligible as USCIS is already paying 
for these services even without this rule.
    USCIS anticipates that there would only be limited circumstances 
where a contract interpreter would be unavailable. As previously 
discussed in Section III of the preamble, in those limited 
circumstances where a contract interpreter is unavailable, USCIS will 
either reschedule the interview and attribute the interview delay to 
USCIS for the purposes of employment authorization pursuant to 8 CFR 
208.7, or USCIS may, in its discretion, allow

[[Page 51788]]

the applicant to provide an interpreter. In such cases, the applicant 
would be in the same position they would have been without this action.
    DHS recognizes there are both quantitative and qualitative benefits 
that could be realized by providing an applicant for asylum the 
opportunity to bring their own interpreter when a contract interpreter 
is unavailable, such as the costs avoided that would be incurred 
through rescheduling if a contract interpreter is unavailable--both for 
the applicant and USCIS, and the overall positive effect on applicants 
of having their asylum application timely adjudicated. Once this rule 
is no longer in effect, asylum applicants unable to proceed with an 
interview before a USCIS asylum officer in English will again be 
required to provide their own interpreters under 8 CFR 208.9(g).

F. Executive Order 13132 (Federalism)

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

G. Executive Order 12988 (Civil Justice Reform)

    This rule meets the applicable standards set forth in section 3(a) 
and 3(b)(2) of Executive Order 12988.

H. Paperwork Reduction Act

    This rule does not propose new, or revisions to existing, 
``collection[s] of information'' as that term is defined under the 
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 
35, and its implementing regulations, 5 CFR part 1320. As this action 
would only span 180 days, USCIS does not anticipate a need to update 
the Form I-589, Application for Asylum and for Withholding of Removal, 
despite the existing language on the form instructions regarding 
interpreters, because it will be primarily rescheduling interviews that 
were cancelled due to COVID-19. USCIS will post updates on its I-589 
website, https://www.uscis.gov/i-589, and other asylum and relevant web 
pages regarding the new interview requirements in this regulation, as 
well as provide personal notice to applicants via the interview notices 
issued to applicants prior to their interview.

List of Subjects in 8 CFR Part 208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

    Accordingly, for the reasons set forth in the preamble, the 
Secretary of Homeland Security amends 8 CFR part 208 as follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
1. The authority citation for part 208 continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.


0
2. Effective from September 20, 2021, through March 16, 2022, amend 
Sec.  208.9 by revising paragraphs (h) introductory text and (h)(1)(i) 
to read as follows:


Sec.  208.9   Procedure for interview before an asylum officer.

* * * * *
    (h) Asylum applicant interpreters. For asylum interviews conducted 
between September 21, 2021, through March 16, 2022:
    (1) * * *
    (i) If a USCIS interpreter is unavailable, USCIS will either 
reschedule the interview and attribute the interview delay to USCIS for 
the purposes of employment authorization pursuant to Sec.  208.7, or 
USCIS may, in its discretion, allow the applicant to provide an 
interpreter.
* * * * *

Alejandro Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2021-20161 Filed 9-16-21; 8:45 am]
BILLING CODE 9111-97-P