Security Bars and Processing; Delay of Effective Date, 79789-79794 [2022-28121]

Agencies

• Executive Office for Immigration Review
• DEPARTMENT OF HOMELAND SECURITY
• Department of Justice

[Federal Register Volume 87, Number 248 (Wednesday, December 28, 2022)]
[Rules and Regulations]
[Pages 79789-79794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28121]



========================================================================
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. 87, No. 248 / Wednesday, December 28, 2022 / 
Rules and Regulations

[[Page 79789]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

[CIS No. 2670-20; Docket No: USCIS 2020-0013]
RIN 1615-AC57

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1208

[A.G. Order No. 5577-2022]
RIN 1125-AB08


Security Bars and Processing; Delay of Effective Date

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security; Executive Office for Immigration Review, Department 
of Justice.

ACTION: Interim final rule with request for comments.

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SUMMARY: On December 23, 2020, the Department of Homeland Security 
(``DHS'') and the Department of Justice (``DOJ'') (collectively, ``the 
Departments'') published a final rule (``Security Bars rule''), to 
clarify that the ``danger to the security of the United States'' 
standard in the statutory bar to eligibility for asylum and withholding 
of removal encompasses certain emergency public health concerns and to 
make certain other changes. This rule would have made a noncitizen 
ineligible for asylum if, among other things, the noncitizen was 
physically present in a country in which a communicable disease was 
prevalent or epidemic, and the Secretary of Homeland Security and the 
Attorney General determined that the physical presence in the United 
States of noncitizens coming from that country would cause a danger to 
the public health. That rule was scheduled to take effect on January 
22, 2021, but, as of January 21, 2021, the Departments delayed the 
rule's effective date for 60 days to March 22, 2021. The Departments 
subsequently further delayed the rule's effective date to December 31, 
2021, and most recently to December 31, 2022. In this rule, the 
Departments are further extending the delay of the effective date of 
the Security Bars rule until December 31, 2024. The Departments are 
soliciting comments both on the delay until December 31, 2024, and 
whether the effective date of the Security Bars rule should be delayed 
beyond that date.

DATES: 
    Effective date: As of December 28, 2022, the effective date of the 
final rule published December 23, 2020, at 85 FR 84160, which was 
delayed by the rules published at 86 FR 6847 (Jan. 25, 2021), 86 FR 
15069 (Mar. 22, 2021), and 86 FR 73615 (Dec. 28, 2021), is further 
delayed until December 31, 2024.
    Submission of public comments: Comments must be submitted on or 
before February 27, 2023.

ADDRESSES: You may submit comments on this rule, identified by DHS 
Docket No. USCIS 2020-0013, through the Federal eRulemaking Portal: 
https://www.regulations.gov. Follow the website instructions for 
submitting comments. Comments submitted in a manner other than the one 
listed above, including emails or letters sent to the Departments' 
officials, will not be considered comments on the rule and may not 
receive a response from the Departments. Please note that the 
Departments cannot accept any comments that are hand-delivered or 
couriered. In addition, the Departments cannot accept comments 
contained on any form of digital media storage devices, such as CDs, 
DVDs, and USB drives. The Departments are not accepting mailed comments 
at this time. If you cannot submit your comment by using https://www.regulations.gov, please contact Samantha Deshommes, Chief, 
Regulatory Coordination Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services (``USCIS''), Department of 
Homeland Security, by telephone at (240) 721-3000 (not a toll-free 
call) for alternate instructions.

FOR FURTHER INFORMATION CONTACT: 
    For USCIS: Ren[aacute] Cutlip-Mason, 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).
    For the Executive Office for Immigration Review: Lauren Alder Reid, 
Assistant Director, Office of Policy, Executive Office for Immigration 
Review, Department of Justice, 5107 Leesburg Pike, Falls Church, VA 
22041; telephone (703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION: 

I. Public Participation

    Interested persons are invited to submit comments on this action to 
further delay the effective date of the Security Bars rule by 
submitting relevant written data, views, or arguments. To provide the 
most assistance to the Departments, comments should reference a 
specific portion of the rule; explain the reason for any 
recommendation; and include data, information, or authority that 
supports the recommended course of action. Comments must be submitted 
in English, or an English translation must be provided. Comments 
submitted in a manner other than those listed above, including emails 
or letters sent to the Departments' officials, will not be considered 
comments on the rule and may not receive a response from the 
Departments.
    Instructions: If you submit a comment, you must include the agency 
name and the DHS Docket No. USCIS 2020-0013 for this rulemaking. All 
submissions will be posted, without change, to the Federal eRulemaking 
Portal at https://www.regulations.gov and will include any personal 
information you provide. Therefore, submitting this information makes 
it public. You may wish to consider limiting the amount of personal 
information that you provide in any voluntary public comment submission 
you make to the Departments. The Departments may withhold information 
provided in comments from public viewing that they determine may impact 
the privacy of an individual or is offensive. For additional 
information, please read the Privacy and Security Notice available at 
https://www.regulations.gov.

[[Page 79790]]

    Docket: For access to the docket and to read background documents 
or comments received, go to https://www.regulations.gov, referencing DHS 
Docket No. USCIS 2020-0013. You may also sign up for email alerts on 
the online docket to be notified when comments are posted or a final 
rule is published.

II. Background

    On December 23, 2020, the Departments published the Security Bars 
rule to amend existing regulations to clarify that in certain 
circumstances there are ``reasonable grounds for regarding [a 
noncitizen] \1\ as a danger to the security of the United States'' or 
``reasonable grounds to believe that [a noncitizen] is a danger to the 
security of the United States'' based on emergency public health 
concerns generated by a communicable disease, making the noncitizen 
ineligible to be granted asylum in the United States under section 208 
of the Immigration and Nationality Act (``INA'' or ``the Act''), 8 
U.S.C. 1158, or the protection of withholding of removal under the Act 
or subsequent regulations (because of the threat of torture).\2\ The 
rule was scheduled to take effect on January 22, 2021.
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    \1\ For purposes of the discussion in this rule, the Departments 
use the term ``noncitizen'' to be synonymous with the term ``alien'' 
as it is used in the INA. See Immigration and Nationality Act, 
101(a)(3), 8 U.S.C. 1101(a)(3).
    \2\ See Security Bars and Processing, 85 FR 84160 (Dec. 23, 
2020).
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    On January 20, 2021, the White House Chief of Staff issued a 
memorandum asking agencies to consider delaying, consistent with 
applicable law, the effective dates of any rules that had been 
published and had not yet gone into effect for the purpose of allowing 
the President's appointees and designees to review questions of fact, 
law, and policy raised by those regulations. See Memorandum for the 
Heads of Executive Departments and Agencies from Ronald A. Klain, 
Assistant to the President and Chief of Staff, Re: Regulatory Freeze 
Pending Review (Jan. 20, 2021), available at 86 FR 7424 (Jan. 28, 
2021). As of January 21, 2021, the Departments delayed the effective 
date of the Security Bars rule to March 22, 2021, then further delayed 
the effective date of the Security Bars rule to December 31, 2021, and 
most recently delayed the effective date of the Security Bars rule to 
December 31, 2022, consistent with that memorandum and a preliminary 
injunction in place with respect to a related rule, as discussed below. 
See Security Bars and Processing; Delay of Effective Date, 86 FR 6847 
(Jan. 25, 2021); Security Bars and Processing; Delay of Effective Date, 
86 FR 15069 (Mar. 22, 2021) (``March 2021 Delay IFR''); Security Bars 
and Processing; Delay of Effective Date, 86 FR 73615 (Dec. 28, 2021) 
(``December 2021 Delay IFR'').

III. Basis for Delay of Effective Date

A. Impact of Injunction Against Implementation of Global Asylum Final 
Rule

    As stated in the March 2021 Delay IFR, the Departments had good 
cause to further delay the Security Bars rule's effective date without 
advance notice and comment because implementation of the Security Bars 
rule was infeasible due to a preliminary injunction against a related 
rule.\3\ Specifically, the Security Bars rule relies on revisions to 
the Departments' regulations previously made on December 11, 2020, by a 
separate joint rule, Procedures for Asylum and Withholding of Removal; 
Credible Fear and Reasonable Fear Review (``Global Asylum final 
rule'').\4\ The Global Asylum final rule was scheduled to become 
effective before the Security Bars rule. However, on January 8, 2021, 
14 days prior to the effective date of the Security Bars rule, in 
Pangea Legal Services v. Department of Homeland Security (``Pangea II 
''), a district court preliminarily enjoined the Departments ``from 
implementing, enforcing, or applying the [Global Asylum final] rule . . 
. or any related policies or procedures.'' \5\ The preliminary 
injunction remains in place. Thus, implementation of the Security Bars 
rule continues to be infeasible.
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    \3\ See 86 FR at 15070.
    \4\ See 85 FR 80274 (Dec. 11, 2020).
    \5\ Pangea Legal Servs. v. U.S. Dep't of Homeland Sec., 512 F. 
Supp. 3d 966, 977 (N.D. Cal. 2021). By issuing this rule to further 
delay the effective date of the Security Bars rule, the Departments 
are not indicating a position on the outcome thus far in Pangea II.
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    The Security Bars rule relies upon the regulatory framework that 
was established in the Global Asylum final rule in applying bars to 
asylum eligibility and withholding of removal during credible fear 
screenings for noncitizens in the expedited removal process.\6\ The 
expedited removal process allows for the removal of certain noncitizens 
from the United States without a removal proceeding before an 
immigration judge under section 240 of the Act, 8 U.S.C. 1229a. A 
noncitizen who expresses a fear of persecution or torture, a fear of 
return, or an intention to apply for asylum during the course of the 
expedited removal process is referred to a USCIS asylum officer for a 
credible fear screening to determine if the noncitizen has a credible 
fear of persecution or torture in the country of removal.\7\ If the 
asylum officer determines that a noncitizen has a credible fear of 
persecution or torture, DHS may either: (1) refer the noncitizen to an 
immigration court by initiating removal proceedings under section 240 
of the INA, 8 U.S.C. 1229a (``section 240 removal proceedings''), where 
the noncitizen may seek relief or protection, or (2) retain 
jurisdiction over the noncitizen's asylum claim for further 
consideration in an interview pursuant to 8 CFR 208.9(b).\8\
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    \6\ See, e.g., 85 FR at 84176 (``As noted, the [Security Bars] 
final rule is not, as the [2020 Security Bars] NPRM proposed, 
modifying the regulatory framework to apply the danger to the 
security of the United States bars at the credible fear stage 
because, in the interim between the NPRM and the final rule, the 
Global Asylum [final rule] did so for all of the bars to eligibility 
for asylum and withholding of removal.''); id. at 84189 (describing 
changes made in the Security Bars rule ``to certain regulatory 
provisions not addressed in the proposed rule as necessitated by the 
intervening promulgation of the Global Asylum [final rule]'').
    \7\ See INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 1225(b)(1)(A)(ii), 
(B); see also 8 CFR 235.3(b)(4)(i), 1235.3(b)(4)(i).
    \8\ See 8 CFR 208.2(a)(1)(ii), 208.30(f), 1208.2(a)(1)(ii), 
1235.6(a)(1)(i).
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    On July 9, 2020, the Departments published a Notice of Proposed 
Rulemaking for the Security Bars rule (``2020 Security Bars NPRM''), 
which proposed regulatory text to apply the security bars during 
credible fear screenings.\9\ This proposal would have modified the 
then-existing regulatory framework, which instructed that, even if the 
noncitizen might have been subject to a bar to asylum eligibility or 
withholding of removal (including the ``danger to the security of the 
United States'' bars underlying the Security Bars rule), the potential 
applicability of that bar would not have impacted their credible fear 
determination.\10\ The modification in the Security Bars NPRM would 
have applied these security bars during the credible fear screening 
rather than during a full removal hearing. The 2020 Security Bars NPRM 
justified the application of the security bars in the credible fear 
determination process as necessary to allow DHS to quickly remove 
individuals covered by the expanded security bars to asylum eligibility 
and withholding of removal, rather than sending potentially barred 
individuals to section 240 removal proceedings, for consideration of 
further relief or protection from removal before an immigration judge, 
which can take more time.\11\ The 2020 Security Bars

[[Page 79791]]

NPRM further explained that applying the security bars during credible 
fear screenings was necessary to reduce health and safety dangers to 
both the public at large and DHS officials.\12\
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    \9\ Security Bars and Processing, 85 FR 41201, 41216-18 (July 9, 
2020).
    \10\ See id. at 41207.
    \11\ See id. at 41210-12.
    \12\ See id. at 41210.
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    On December 11, 2020, while the Departments were reviewing the 
comments submitted in response to the 2020 Security Bars NPRM, the 
Global Asylum final rule was published.\13\ The Global Asylum final 
rule changed the governing regulations to apply all bars to asylum 
eligibility and withholding of removal during credible fear 
screenings.\14\ Most relevant, the Global Asylum final rule changed the 
then-existing regulatory framework described above, in which evidence 
of a bar to asylum eligibility or withholding of removal did not have 
any impact on a credible fear determination (even though the bars would 
be part of the ultimate adjudication of asylum eligibility or 
withholding of removal before the Executive Office for Immigration 
Review), to a framework that instead required asylum officers to apply 
all of the bars to asylum eligibility or withholding of removal during 
credible fear screenings.\15\
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    \13\ 85 FR at 80274.
    \14\ See id. at 80391.
    \15\ See id.
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    On December 23, 2020, the Security Bars rule was published. In that 
final rule, the Departments revised the text from the 2020 Security 
Bars NPRM to explicitly rely on the intervening changes made by the 
Global Asylum final rule.\16\ As a result, the regulatory text of 
significant portions of the Security Bars rule relies upon and repeats 
broader regulatory text established by the Global Asylum final rule, 
such as applying bars to asylum eligibility and withholding of removal 
during credible fear screenings.\17\ The Security Bars rule assumed 
that the Global Asylum final rule would be in effect, and, therefore, 
the Security Bars rule did not make additional changes to the credible 
fear framework.\18\
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    \16\ 85 FR at 84174-77.
    \17\ Compare e.g., id. at 84194-98 (revisions to 8 CFR 208.30, 
235.6, 1208.30, 1235.6, and other provisions in the Security Bars 
rule), with, e.g., 85 FR at 80390-80401 (revisions to same sections 
in the Global Asylum final rule).
    \18\ See 85 FR at 84175 (``The Departments note that the final 
rule is not, as the NPRM proposed, modifying the regulatory 
framework to apply the danger to the security of the United States 
bars at the credible fear stage. In the interim between the NPRM and 
the final rule, the Global Asylum [final rule] did so for all of the 
bars to eligibility for asylum and withholding of removal.'').
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    The Security Bars rule, if it were to become effective as 
published, would bar two broad categories of noncitizens who ``pose a 
danger to the security of the United States'' from eligibility for 
asylum, statutory withholding of removal, and withholding of removal 
under regulations implementing the Convention Against Torture and Other 
Cruel, Inhuman or Degrading Treatment or Punishment (``CAT'') \19\; and 
would alter the screening processes for eligibility for CAT deferral of 
removal in credible fear interviews.\20\ The Security Bars rule 
provided that, if an asylum officer determined that a noncitizen was 
subject to the bars outlined in the rule, the asylum officer would 
screen the noncitizen for potential eligibility for deferral of removal 
under the CAT regulations (``CAT deferral of removal'') by determining 
whether it was ``more likely than not'' that the noncitizen would be 
tortured in the prospective country of removal.\21\
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    \19\ CAT, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 
U.N.T.S. 85.
    \20\ See id. at 84160, 84174.
    \21\ See id. at 84194-95.
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    As a result of the interplay between the two rules, implementation 
of the Security Bars rule would violate the injunction against the 
application, implementation, or enforcement of the Global Asylum final 
rule and related policies or procedures. Effective implementation of 
the Security Bars rule relies on the application of the asylum and 
withholding of removal bars to eligibility at the credible fear 
screening stage, as established by the Global Asylum final rule.\22\ 
Accordingly, implementing the Security Bars rule would effectively 
reinsert or rely upon regulatory provisions enjoined by the Pangea II 
court. In other words, under the Pangea II injunction, it would be 
impermissible to apply the bars to asylum eligibility and withholding 
of removal outlined in the Security Bars rule to noncitizens in the 
credible fear screening process. Given these circumstances, the 
Departments believe that the Security Bars rule, which could not be 
implemented as designed, would not necessarily provide the framework 
for achieving its intended goals.
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    \22\ As the Departments explained in the Security Bars rule, the 
intervening Global Asylum final rule made changes to the credible 
fear screening framework to provide that noncitizens receiving 
positive credible fear determinations be placed in asylum-and-
withholding-only proceedings, rather than section 240 removal 
proceedings. See 85 FR at 84188. The Security Bars rule relied upon 
this change made in the Global Asylum final rule to provide that 
noncitizens who receive positive credible fear determinations under 
the Security Bars rule would be placed in such asylum-and-
withholding-only proceedings rather than section 240 removal 
proceedings, unless they were removed to third countries. See id. 
The Security Bars rule also assumes that the Departments are using 
the reasonable possibility of persecution or torture standards for 
withholding of removal claims in the credible fear screening 
context, which is also based on a change that was made in the Global 
Asylum final rule. See id. at 84188, 84191.
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B. Impact of Asylum Processing IFR

    On March 29, 2022, the Departments published an interim final rule 
titled Procedures for Credible Fear Screening and Consideration of 
Asylum, Withholding of Removal, and CAT Protection Claims by Asylum 
Officers (``Asylum Processing IFR'').\23\ The Asylum Processing IFR 
became effective on May 31, 2022.\24\ The Asylum Processing IFR amended 
the governing regulations to allow USCIS asylum officers to adjudicate 
the asylum applications of individuals subject to expedited removal who 
are found to have a credible fear of persecution or torture.\25\
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    \23\ See 87 FR 18078.
    \24\ The implementation of the Asylum Processing IFR is taking 
place in a phased manner, beginning with a small number of 
individuals, and will grow as USCIS builds operational capacity over 
time. See 87 FR at 18185.
    \25\ See id. at 18089.
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    The Asylum Processing IFR also amended certain regulations modified 
in part by the Security Bars rule to return to the regulatory framework 
governing credible fear screening standards and, with limited 
exceptions, applicability of mandatory bars at the credible fear 
screening stage that had been in place before the Global Asylum final 
rule was promulgated.\26\ In particular, the Asylum Processing IFR 
revised the regulations governing the credible fear screening process 
to apply the longstanding ``significant possibility'' standard in 
screenings for statutory withholding of removal and CAT protection 
claims.\27\ And, with limited exceptions, the Asylum Processing IFR 
revised the regulatory framework to return to longstanding regulations 
to screen for eligibility for asylum and statutory withholding of 
removal without applying bars to asylum and withholding of removal in 
the credible fear screening process.\28\ The regulatory changes made by 
the Asylum Processing IFR do not include the applicability of the bars 
outlined in the Security Bars rule.\29\
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    \26\ See id. at 18084, 18091-94.
    \27\ See id. at 18084, 18091-92.
    \28\ See id. at 18121-22, 18084, 18092-94.
    \29\ See id. at 18121-22, 18084, 18091-94.
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    If the Security Bars rule were to become effective as published, 
then, when combined with the changes made by the Asylum Processing IFR 
to the regulations governing the credible fear screening framework and 
standards, the result would be to create confusing and nonsensical 
regulatory text. The Asylum

[[Page 79792]]

Processing IFR revised regulatory language in 8 CFR 208.30, 235.6, 
1003.42, 1208.30, and 1235.6 that the Security Bars rule assumed would 
be in effect, but which now no longer exists in the CFR. For example, 
in 8 CFR 208.30(f), the Security Bars rule revised the regulatory 
language that existed at the time to incorporate the ``more likely than 
not'' standard, which is related to evaluating eligibility for CAT 
deferral of removal when an individual is subject to the security bars 
outlined in the Security Bars rule.\30\ The Asylum Processing IFR 
revised 8 CFR 208.30(f) significantly, so the regulatory text that 
existed at the time of the publication of the Security Bars rule no 
longer exists in the current version of 8 CFR 208.30(f) in the CFR.\31\ 
Additional examples include 8 CFR 208.30(e)(4), (e)(5), 235.6(a)(2), 
1003.42(d)(1), 1208.30(e), (g)(2), and 1235.6(a)(2). Compare, e.g., 85 
FR at 84191, 84196 (portion of Security Bars rule amending 8 CFR 
235.6(a)(2) to ``reflect the new screening standard for potential 
eligibility for deferral of removal'' established in the Global Asylum 
final rule by providing for the next procedural steps ``[i]f an asylum 
officer determines that the [noncitizen] has not established a credible 
fear of persecution, reasonable possibility of persecution, reasonable 
possibility of torture, or that it is more likely than not that the 
[noncitizen] would be tortured''), with, e.g., 87 FR at 18220 (portion 
of Asylum Processing IFR amending the same section, 8 CFR 235.6(a)(2), 
to omit any reference to a ``reasonable possibility of persecution, 
reasonable possibility of torture, or [whether] it is more likely than 
not that the [noncitizen] would be tortured'').
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    \30\ See 85 FR at 84194-95.
    \31\ See 87 FR at 18219.
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    Further, if the Security Bars rule were to become effective as 
published, the regulations would not coherently interrelate when viewed 
individually or as a whole, which would create substantial confusion 
and disorder in the credible fear screening process. The intervening 
Asylum Processing IFR has made significant changes to the regulations 
governing the credible fear screening framework and standards, and 
because these changes are incompatible with applying the Security Bars 
rule according to its terms, these intervening regulatory changes 
further justify delaying the effective date of the Security Bars rule.
    Accordingly, the Departments are further delaying the effective 
date of the Security Bars rule until December 31, 2024, due to the 
aforementioned litigation and the intervening Asylum Processing IFR. 
The Departments believe that a delay of two years, rather than a 
shorter delay, is appropriate. If the injunction against implementation 
of the Global Asylum final rule were lifted, the Departments would need 
to consider how the regulatory changes that the Asylum Processing IFR 
made to the credible fear screening framework and standards impact the 
regulatory text of the Security Bars rule. Given the numerous 
procedural inconsistencies between the Asylum Processing IFR and the 
Security Bars rule, as discussed above, the Departments believe that 
determining how to feasibly apply both rules (or whether such 
application is feasible at all) would require substantial time. Also, 
as discussed below, the Departments are planning to issue a notice of 
proposed rulemaking to modify or rescind the Security Bars rule in the 
near future. The Departments would need to consider whether attempting 
to apply the Security Bars rule at all would be consistent with any 
policy considerations raised by that forthcoming NPRM to modify or 
rescind the Security Bars rule.

C. Rulemaking To Modify or Rescind Security Bars Rule

    The Departments are reconsidering the Security Bars rule in light 
of the Administration's policies of ensuring the safe and orderly 
reception and processing of asylum seekers, consistent with public 
health and safety, strengthening the asylum system, and removing 
barriers that impede access to immigration benefits, with the 
additional context of the complex relationship between the Global 
Asylum final rule and the Security Bars rule and the court's injunction 
in Pangea II.\32\ The Departments are reevaluating whether the Security 
Bars rule provides the most appropriate and effective framework for 
achieving its goals of mitigating the spread of communicable diseases, 
including COVID-19, among certain noncitizens in the credible fear 
screening process, as well as DHS personnel and the public. The 
Departments are working to publish a separate NPRM in the near future 
to solicit public comments on whether to modify or rescind the Security 
Bars rule (``forthcoming Security Bars NPRM'').\33\ The Departments, in 
publishing the December 2021 Delay IFR, anticipated that this 
rulemaking would be complete by December 31, 2022. However, competing 
priorities have resulted in delays in publishing the forthcoming 
Security Bars NPRM. In light of the limits on the Departments' 
resources, they have been required to prioritize efforts based on the 
most pressing needs, which include, but are not limited to, litigation 
constraints, see, e.g., Deferred Action for Childhood Arrivals, 87 FR 
53152 (Aug. 30, 2022), and building an orderly process to address 
increasing numbers of individuals coming to the United States, see, 
e.g., Asylum Processing IFR, 87 FR 18078.
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    \32\ See, e.g., E.O. 14010, 86 FR 8267 (Feb. 2, 2021) (Creating 
a Comprehensive Regional Framework to Address the Causes of 
Migration, to Manage Migration Throughout North and Central America, 
and to Provide Safe and Orderly Processing of Asylum Seekers at the 
United States Border); E.O. 14012, 86 FR 8277 (Feb. 2, 2021) 
(Restoring Faith in Our Legal Immigration Systems and Strengthening 
Integration and Inclusion Efforts for New Americans); see also 
Executive Office of the President, Office of Management and Budget, 
Office of Information and Regulatory Affairs, Spring 2022 Unified 
Agenda of Regulatory and Deregulatory Actions, Security Bars and 
Processing, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202204&RIN=1615-AC57.
    \33\ Members of the public may follow the progress of the 
forthcoming Security Bars NPRM on the Administration's Unified 
Agenda of Regulatory and Deregulatory Actions, which is available at 
https://www.reginfo.gov/public/do/eAgendaMain.
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    Accordingly, the Departments are further delaying the effective 
date of the Security Bars rule until December 31, 2024. The Departments 
believe that, rather than a one-year delay, as they issued in December 
of 2021, a two-year delay of the effective date will better ensure that 
there is sufficient time to complete notice-and-comment rulemaking to 
modify or rescind the Security Bars final rule, even in the event that 
circumstances require shifting departmental priorities and resources. 
The Departments believe that a two-year delay will allow sufficient 
time for the Departments to issue the forthcoming Security Bars NPRM, 
give careful and meaningful consideration to comments received on the 
forthcoming Security Bars NPRM, and issue a final rule.
    In the March 2021 Delay IFR, the Departments explained that they 
were considering amending or rescinding the Security Bars rule and 
sought public comments on whether the Security Bars rule should be 
revised or revoked and information on alternative approaches that may 
achieve the best public health outcome consistent with the 
Administration's immigration policy goals.\34\ The Departments received 
66 comments in response to the March 2021 Delay IFR. As stated in the 
December 2021 Delay IFR, the Departments plan to address comments 
regarding modification or rescission of the Security Bars rule in a 
separate rulemaking. See 86 FR at 73617. A number of the commenters 
expressed

[[Page 79793]]

support or opposition to the substance of the Security Bars rule as 
part of their response to the Departments' March 2021 Delay IFR. 
Although a few of the commenters supported the Security Bars rule, the 
majority of the commenters opposed the rule. Subsequently, the 
Departments published the December 2021 Delay IFR on December 28, 2021, 
in which they ``continue[d] to welcome data, views, and information 
regarding the effective date of the Security Bars rule.'' 86 FR at 
73617. The Departments received 15 unduplicated comments in response to 
the December 2021 Delay IFR, 13 of which expressed opposition to the 
Security Bars Final Rule. Two commenters supported implementation of 
the Security Bars Final Rule without specifically discussing a delay 
beyond December 31, 2021, although one stated that the policy should 
not be delayed. Among commenters who opposed the Security Bars final 
rule, one suggested it be ``delayed indefinitely,'' and two supported 
further delay of the rule while also urging rescission of the rule. 
Additionally, four commenters--including one joint comment of 135 non-
governmental organizations--urged immediate rescission of the final 
rule rather than continuing to delay its effective date. Finally, some 
commenters responding to the March 2021 Delay IFR specifically 
addressed the question of a delayed effective date. Two of these 
commenters urged the Departments to implement the Security Bars rule 
without further delay, and one supported the delay. To the extent the 
comments received in response to each IFR delaying the effective date 
of the Security Bars rule address the substance of the Security Bars 
rule beyond the question of the effective date, including suggestions 
to modify or rescind the rule, the Departments will consider those 
comments, and the comments on the forthcoming Security Bars NPRM, in 
promulgating a final rule based on that NPRM.
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    \34\ See 86 FR at 15069, 15071.
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    To the extent the comments received in response to the March 2021 
Delay IFR and the December 2021 Delay IFR address the further delay of 
the Security Bars rule, the Departments have considered those comments 
and have determined that a two-year further delay is most appropriate. 
Several commenters, as noted, opposed delay, but the Departments have 
concluded that a further delay of at least some length is necessary to 
ensure the Departments are not required to try to apply both the Asylum 
Processing IFR and the Security Bars rule without sufficient time to 
consider the many inconsistencies between those rules. Another 
commenter, as noted, suggested an indefinite delay, but the Departments 
believe an indefinite delay is unnecessary at this time because the 
Departments' forthcoming Security Bars NPRM will be completed at some 
point in the near future, and, once that rulemaking process is 
finalized, that rulemaking could obviate the need for an indefinite 
delay by modifying or rescinding the Security Bars rule. Finally, the 
remaining commenters who mentioned the possibility of further delay did 
not cite any specific reasons for a delay of a particular length, and 
the Departments have concluded that two years is an appropriate 
duration. The Departments acknowledge the desire of some commenters to 
rescind the Security Bars rule without further delaying its effective 
date. However, as discussed in this rule, the Departments intend to 
publish the forthcoming Security Bars NPRM in the near future to 
address the issue of possible modification or rescission. The 
Departments note that thousands of comments were received in response 
to the 2020 Security Bars NPRM. The Departments anticipate that they 
may similarly receive a substantial volume of comments in response to 
the forthcoming Security Bars NPRM. They accordingly believe it is 
prudent to delay the Security Bars rule's effective date for two years 
to ensure sufficient time to carefully review, consider, and respond to 
comments in promulgating a final rule--especially in light of the 
Departments' potentially competing rulemaking priorities--and avoid the 
need for additional IFRs to further delay the Security Bars rule's 
effective date before the anticipated final rule can become effective. 
See Massachusetts v. E.P.A., 549 U.S. 497, 527 (2007) (``[A]n agency 
has broad discretion to choose how best to marshal its limited 
resources and personnel to carry out its delegated 
responsibilities.'').
    The Departments recognize that the COVID-19 public health emergency 
is highly dynamic and continues to pose health and safety risks for 
noncitizens held in congregate settings, particularly at holding and 
detention facilities; for agency personnel; and for the public.\35\ As 
the COVID-19 public health emergency has continued to evolve, the 
Departments continue to reconsider and reevaluate how best to mitigate 
the spread of COVID-19 and which actions are most appropriate in 
accordance with their legal authorities.
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    \35\ See Public Health Determination and Order Regarding 
Suspending the Right to Introduce Certain Persons From Countries 
Where a Quarantinable Communicable Disease Exists, 87 FR 19941, 
19942, 19950-52 (Apr. 6, 2022).
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IV. Request for Comment on Further Delay of the Effective Date of the 
Security Bars Rule

    The Departments continue to welcome data, views, and information 
regarding the effective date of the Security Bars rule. The Departments 
also are soliciting comments on whether the effective date should be 
delayed beyond December 31, 2024. The Departments note that comments 
addressing whether the Security Bars rule should be modified or 
rescinded should be submitted in response to the forthcoming Security 
Bars NPRM, and not in response to this interim final rule.

V. Regulatory Requirements

A. Administrative Procedure Act

    Under the Administrative Procedure Act (``APA''), agencies must 
generally provide ``notice of proposed rule making'' in the Federal 
Register and, after such notice, ``give interested persons an 
opportunity to participate in the rule making through submission of 
written data, views, or arguments.'' 5 U.S.C. 553(b)-(c). In the 
December 2021 Delay IFR, the Departments notified the public that they 
were considering ``whether the effective date of the Security Bars rule 
should be extended beyond [the December 31, 2022] date'' and 
specifically ``solicit[ed] comments'' on such a delay. 86 FR at 73615; 
see also id. at 73617 (welcoming any ``data, views, and information 
regarding the effective date of the Security Bars rule,'' including 
comments on whether the effective date ``should be extended beyond 
December 31, 2022, if the Pangea II injunction is still in effect or if 
other intervening events occur''). As discussed above, the Departments 
have considered the comments received in response to the notice and 
request for comments in the December 2021 Delay IFR and have decided 
for the reasons articulated above to delay the effective date of the 
Security Bars rule until December 31, 2024. Both the Pangea II 
injunction and intervening events such as the publication of the Asylum 
Processing IFR make continued delay of the Security Bars rule 
necessary. In addition, a two-year delay appropriately allows the 
Departments sufficient time to both (1) consider how the Security Bars 
rule would interact with the Asylum Processing IFR if the Pangea II 
injunction were lifted and both rules were to be implemented 
simultaneously, and (2) complete the forthcoming Security Bars NPRM 
regarding whether to modify or rescind

[[Page 79794]]

the Security Bars rule as well as complete a final rule following 
careful consideration of comments received.
    Further, even if the Departments had not fulfilled the notice-and-
comment requirements of the APA, agencies are not required to engage in 
pre-promulgation notice and comment under 5 U.S.C. 553(b) and (c) 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). Consistent with the March 2021 Delay 
IFR and the December 2021 Delay IFR, the Departments have determined 
that the good cause exception applies to this rule because 
implementation of the Security Bars rule has not been--and continues to 
not be--feasible due to a preliminary injunction against a related 
rule. Furthermore, as discussed above, the implementation of the Asylum 
Processing IFR also impacts the feasibility of the Security Bars rule. 
The Security Bars rule's reliance upon and interplay with the Global 
Asylum final rule, as explained above, mean that implementation of the 
Security Bars rule would risk violating the Pangea II injunction. The 
preliminary injunction remains in place. It is therefore unnecessary 
for the Departments to provide notice and an opportunity to comment 
because any comments received cannot and will not affect the injunction 
underlying the need for delay. See EME Homer City Generation, L.P. v. 
E.P.A., 795 F.3d 118, 134-35 (D.C. Cir. 2015) (explaining that the good 
cause exception applied because ``commentators could not have said 
anything during a notice and comment period that would have changed'' 
the agency's response to a judicial decision).

B. Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and Regulatory Review)

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs, benefits, and transfers of available alternatives, and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits, including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity. Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Pursuant to Executive Order 12866, the Office of Information and 
Regulatory Affairs of the Office of Management and Budget determined 
that this rule is ``significant'' under Executive Order 12866 and has 
reviewed this regulation.

C. Regulatory Flexibility Act

    The Departments have reviewed this rule in accordance with the 
Regulatory Flexibility Act, Public Law 96-354, 94 Stat. 1164 (1980), as 
amended (codified at 5 U.S.C. 601 et seq.), and have determined that 
this rule to further delay the effective date of the Security Bars rule 
(85 FR 84160) will not have a significant economic impact on a 
substantial number of small entities. Neither the Security Bars rule, 
nor this rule to delay its effective date, regulates ``small entities'' 
as that term is defined in 5 U.S.C. 601(6). Only individuals, rather 
than entities, are eligible to apply for asylum and related forms of 
relief, and only individuals are placed in immigration proceedings.

D. Unfunded Mandates Reform Act of 1995

    This rule 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 are deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995, Public Law 104-4, 109 Stat. 48; see also 2 U.S.C. 1532(a).

E. Congressional Review Act

    This rule is not a major rule as defined by section 804 of the 
legislation commonly known as the Congressional Review Act, see Public 
Law 104-121, sec. 251, 110 Stat. 847, 868 (1996) (codified in relevant 
part at 5 U.S.C. 804) (``CRA''). 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. The Departments have 
complied with the CRA's reporting requirements and have sent this rule 
to Congress and to the Comptroller General as required by 5 U.S.C. 
801(a)(1).

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, the Departments believe that this rule will 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 create 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, 109 Stat. 163, 44 
U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320.

I. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This rule does not have ``[T]ribal implications'' because it does 
not have substantial direct effects on one or more Indian Tribes, on 
the relationship between the Federal Government and Indian Tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian Tribes. Accordingly, Executive Order 13175 
(Consultation and Coordination with Indian Tribal Governments) requires 
no further agency action or analysis.

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
Merrick B. Garland,
Attorney General, U.S. Department of Justice.
[FR Doc. 2022-28121 Filed 12-27-22; 8:45 am]
BILLING CODE 9111-97-P 4410-30-P