Federal Register, Volume 87 Issue 51 (Wednesday, March 16, 2022)

[Federal Register Volume 87, Number 51 (Wednesday, March 16, 2022)]
[Rules and Regulations]
[Pages 14757-14763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05636]

========================================================================
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. 51 / Wednesday, March 16, 2022 /
Rules and Regulations

[[Page 14757]]

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
third time, the effective date (for 365 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.

DATES: This temporary final rule is effective from March 16, 2022
through March 16, 2023. As of March 16, 2022, 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), and at 86 FR 51781
(Sept. 17, 2021), is further extended from March 16, 2022 through March
16, 2023. If conditions improve and the health concerns posed by COVID-
19 are resolved before this temporary final rule expires, DHS will
consider publishing a final rule terminating this temporary final rule
prior to the expiration of this 365-day extension.

FOR FURTHER INFORMATION CONTACT: 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).
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.'' INA 208(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 final rule extends the rule published
at 85 FR 59655, for a third 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 final rule will extend the requirement in certain
instances allowing noncitizens interviewed for this discretionary
asylum benefit to use USCIS-provided interpreters during affirmative
asylum interviews. This temporary final 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 14758]]

by the SARS-CoV-2 virus.\1\ Effective January 14, 2022, HHS renewed the
determination that ``a public health emergency exists and has existed
since January 27, 2020, nationwide.'' \2\ On February 18, 2022, the
President issued a continuation of the National Emergency concerning
the COVID-19 pandemic.\3\ As of March 4, 2022, there have been over 440
million confirmed cases of COVID-19 identified globally, resulting in
more than 5.9 million deaths.\4\ Approximately 78,428,884 cases have
been identified in the United States, with about 242,345 new cases
identified in the 7 days preceding February 28, 2022, and approximately
947,625 reported deaths due to the disease.\5\ A more detailed
background discussion of the COVID-19 pandemic is found in the original
temporary final rule, as well as in the first and second extensions of
the rule, and USCIS incorporates the discussions of the pandemic into
this extension. See 85 FR 59655; 86 FR 15072; 86 FR 51781.
---------------------------------------------------------------------------

\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\ HHS, Renewal of Determination that a Public Health Emergency
Exists (Jan. 14, 2022), https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx.
\3\ Notice on the Continuation of the National Emergency
Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 87 FR
10289 (Feb. 23, 2022); Proclamation 9994 of March 13, 2020,
Declaring a National Emergency Concerning the Coronavirus Disease
(COVID-19) Outbreak, 85 FR 15337 (Mar. 18, 2020).
\4\ WHO Coronavirus (COVID-19) Dashboard (updated Mar. 4, 2022),
https://covid19.who.int/.
\5\ Id.
---------------------------------------------------------------------------

Since publication of the original temporary final rule, variants of
the virus that causes COVID-19 have been reported in the United
States.\6\ Evidence suggests that some variants may spread more quickly
and easily than others and at least one variant may cause more severe
illness than other variants.\7\ The COVID-19 Delta and Omicron variants
were labeled as Variants 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\ Following
the first Omicron case reported in the United States, on December 1,
2021, there was a rapid increase in infections and hospitalizations
with multiple large clusters of outbreaks that peaked in mid-January
2022.\9\ Since mid-January 2022, the number of COVID-19 infections and
hospitalizations in the United States has decreased (as of March 6,
2022), although COVID-19 infections continue to be reported.\10\
---------------------------------------------------------------------------

\6\ Centers for Disease Control and Prevention (CDC), SARS-CoV-2
Variant Classifications and Definitions (updated Dec. 1, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/variants/variant-classifications.html.
\7\ CDC, What You Need to Know About Variants (updated Feb. 25,
2022), https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html.
\8\ CDC, SARS-CoV-2 Variant Classifications and Definitions.
\9\ CDC, Rapid Increase of Omicron Variant Infections in the
United States: Management of Healthcare Personnel with SARS-CoV-2
Infection or Exposure (Dec. 24, 2021), https://emergency.cdc.gov/han/2021/pdf/CDC_HAN_460.pdf; CDC, Potential Rapid Increase of
Omicron Variant Infections in the United States (updated Dec. 20,
2021), https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/mathematical-modeling-outbreak.html; CDC, COVID Data
Tracker--Trends in Number of COVID-19 Cases and Deaths in the U.S.
Reported to CDC, by State/Territory (updated Mar. 6, 2022), https://covid.cdc.gov/covid-data-tracker/#trends_dailycases; CDC, COVID Data
Tracker: New Admissions of Patients with Confirmed COVID-19 Per
100,000 Population by Age Group, United States (updated Mar. 6,
2022), https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions.
\10\ CDC, COVID Data Tracker--Trends in Number of COVID-19 Cases
and Deaths in the U.S. Reported by CDC, by State/Territory; CDC,
COVID Data Tracker: New Admissions of Patients with Confirmed COVID-
19 Per 100,000 Population by Age Group, United States.
---------------------------------------------------------------------------

The U.S. Food and Drug Administration (FDA) granted approval for
the Pfizer-BioNTech COVID-19 vaccine for individuals 16 years and older
in August 2021 \11\ and the Moderna COVID-19 vaccine for individuals 18
years and older in January 2022.\12\ While the vaccine is widely
accessible in the United States, geographic data indicates a wide
disparity in the percentages of fully vaccinated individuals by state,
ranging from 50.3 percent in Alabama to 80.9 percent in Rhode Island,
not taking into account United States territories.\13\ Although the FDA
has determined that approved COVID-19 vaccines are effective in
eligible individuals, their effectiveness at preventing infection wanes
over time, and thus, CDC guidance states that eligible individuals
should receive COVID-19 vaccine booster shots after certain periods of
time.\14\ CDC's decision to begin booster shots in late 2021 was based
on information about vaccine effectiveness and the impact of variants
on vaccine effectiveness.\15\ A January 2022 study indicated that the
COVID-19 pandemic is driven by seasonality.\16\ Another study indicated
that seasonal factors, alongside the increased demand for healthcare
resources due to seasonal influenza, should be taken into account when
developing future intervention measures.\17\
---------------------------------------------------------------------------

\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\ CDC, Moderna COVID-19 Vaccine (also known as Spikevax)
Overview and Safety (updated Feb. 1, 2022), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/Moderna.html.
\13\ CDC, COVID Data Tracker--COVID-19 Vaccinations in the
United States (updated Mar. 6, 2022), https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total.
\14\ CDC, COVID-19 Vaccine Booster Shots (updated Feb, 2, 2022),
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/booster-shot.html; FDA, COVID-19 Frequently Asked Questions (updated Jan. 7,
2022), https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/covid-19-frequently-asked-questions; CDC, Stay Up to Date with Your Vaccines (updated Jan. 16,
2022), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/stay-up-to-date.html.
\15\ CDC, COVID-19 Vaccine Booster Shots.
\16\ Mario Coccia, COVID-19 Pandemic Over 2020 (With Lockdowns)
and 2021 (With Vaccinations): Similar Effects for Seasonality and
Environmental Factors, 208 Environmental Research (2022), https://www.sciencedirect.com/science/article/pii/S001393512200038X?via%3Dihub (last visited Mar. 4, 2022).
\17\ NIH, The role of seasonality in the spread of COVID-19
pandemic (Feb. 19, 2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7892320/.
---------------------------------------------------------------------------

\18\ CDC, The Possibility of COVID-19 after Vaccination:
Breakthrough Infections (updated Dec. 17, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html.
\19\ CDC, Rate of COVID-19 Cases and Deaths by Vaccination
Status, https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status, (last visited Mar. 7, 2022).
---------------------------------------------------------------------------

On February 25, 2022, CDC updated the framework for monitoring the
spread of COVID-19 in communities across the United States.\20\ The
framework involves evaluating factors related to the severity of
disease, including hospitalizations and hospital capacity, to help
determine whether the level of COVID-19 and severe disease are low,
medium, or high in a community (known as ``COVID-19 community
levels'').\21\ Depending on the COVID-19 community level, CDC
recommends different individual, household, and community-level
prevention strategies,

[[Page 14759]]

which may or may not include wearing facial covers indoors.\22\ As a
result of CDC's COVID-19 community levels guidance, the Safer Federal
Workforce Task Force, which is led by the White House COVID-19 Response
Team, issued updated facial covers and screening testing guidelines on
February 28, 2022, for employees, contractors, and visitors to Federal
buildings.\23\
---------------------------------------------------------------------------

\20\ CDC, CDC Newsroom--Transcript of CDC Media Telebriefing:
Update on COVID-19 (Feb. 25, 2022), https://www.cdc.gov/media/releases/2022/t0225-covid-19-update.html.
\21\ Id.
\22\ CDC, COVID-19 Community Levels (updated Feb. 25, 2022),
https://www.cdc.gov/coronavirus/2019-ncov/science/community-levels.html.
\23\ Safer Federal Workforce, Mask-Wearing, https://www.saferfederalworkforce.gov/faq/mask-wearing/ (last visited Mar.
3, 2022).
---------------------------------------------------------------------------

Widespread testing is available to confirm suspected cases of
COVID-19 infection but testing performance varies by type, with antigen
tests being less sensitive than Nucleic Acid Amplification Tests
(NAATs).\24\ This may require symptomatic people with negative tests to
retest in order to confirm results.\25\ CDC states that the predictive
value of a test will also depend on COVID-19 community levels.\26\ The
use of NAATs in areas with a high COVID-19 community level and
increased testing demand may result in test processing delays while a
highly specific antigen test may result in many false positives in an
area where infection rates are low.\27\ This is because test predictive
values are dependent on pretest probability, or the COVID-19 community
level and the clinical context of those being tested.\28\ CDC guidance
states that individuals who were exposed to a person with COVID-19 may
or may not need to self-quarantine depending on vaccination status and
whether they develop symptoms.\29\
---------------------------------------------------------------------------

\24\ CDC, Overview of Testing for SARS-CoV-2 (COVID-19) (updated
Feb. 11, 2022), https://www.cdc.gov/coronavirus/2019-ncov/hcp/testing-overview.html.
\25\ Id.
\26\ Id.
\27\ Id.
\28\ Id.
\29\ CDC, Quarantine & Isolation (updated Jan. 27, 2022),
https://www.cdc.gov/coronavirus/2019-ncov/your-health/quarantine-isolation.html.
---------------------------------------------------------------------------

II. Purpose of This Temporary Final Rule

USCIS continues its efforts to protect the health and safety of its
employees and the public by requiring all federal employees, on-site
contractors, and visitors to follow local USCIS guidance on physical
distancing and workplace protection guidance consistent with CDC and
agency guidance.\30\ Also, USCIS regularly updates its guidance on
facial covers for all employees and members of the public to reflect
evolving CDC guidance.\31\
---------------------------------------------------------------------------

\30\ USCIS Response to COVID-19 (updated Jan. 25, 2022), https://www.uscis.gov/about-us/uscis-response-to-covid-19.
\31\ Id.
---------------------------------------------------------------------------

USCIS has conducted 32,012 total asylum interviews between
September 23, 2020 and March 7, 2022.\32\ The original temporary final
rule, implemented on September 23, 2020, and its extensions implemented
on March 22 and September 20, 2021, and other noted public safety
measures have helped mitigate the impact of COVID-19 and have been
effective in keeping the USCIS workforce and the public safe. As of
February 25, 2022, there have been 4,061 confirmed cases of COVID-19
exposure among USCIS employees and contractors. The overall percentage
of positive cases reported among USCIS employees since the start of the
pandemic is 14.3 percent.
---------------------------------------------------------------------------

\32\ Between September 23, 2020 and March 10, 2021, USCIS
conducted 7,764 asylum interviews. See 86 FR at 15074. Between March
10, 2021, and August 8, 2021, USCIS conducted 9,136 asylum
interviews. See 86 FR at 51784.
---------------------------------------------------------------------------

Therefore, DHS has determined that it is in the best interest of
the public and USCIS employees and contractors to extend the temporary
final rule for 365 days. Under this third extension, USCIS will
continue requiring asylum applicants who are unable to proceed with the
interview in English to use government-provided telephonic contract
interpreters if 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 and the
elected language not on the GSA schedule, to the interview. In the
second extension of the temporary final rule, published at 85 FR 59655,
DHS also amended 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. See 86 FR 51781. 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 third extension, the justifications from
the original temporary final rule and all subsequent extensions. The
measures implemented since the original temporary final rule to protect
employees, asylum applicants, and other members of the public, continue
to be a priority for USCIS. Additionally, the modification to the
second extension (i.e., USCIS exercising discretion to allow an asylum
applicant to bring an interpreter to the interview if a contract
interpreter is unavailable), will remain in place. The modification has
given USCIS flexibility to plan ahead in the limited circumstances when
a contract interpreter is expected to be unavailable for an asylum
interview, reducing the likelihood of canceled interviews and unused
office space. This third extension also incorporates the discussions on
the overall 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 final
rule and all extensions.

III. Discussion of Regulatory Change: 8 CFR 208.9(h) ³³
---------------------------------------------------------------------------

\33\ 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 and its extensions revise 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 365 days. DHS is not 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 extend the temporary final rule modifying the interpreter
requirements for asylum applicants in order to lower the number of in-
person attendees at asylum interviews. For 365 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 final rule at 85 FR at 59657.\34\ Additionally, as provided
in 8 CFR 208.9(h)(1), DHS will continue to allow, in USCIS' discretion,
an applicant for asylum to provide an

[[Page 14760]]

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 temporary final rule is no longer in effect,
asylum applicants unable to proceed with an affirmative asylum
interview based on a Form I-589, Application for Asylum and for
Withholding of Removal, in English before a USCIS asylum officer will
be required to provide their own interpreters under 8 CFR 208.9(g).
---------------------------------------------------------------------------

\34\ DHS notes that this extension does not modify 8 CFR
208.9(g); rather the extension of the temporary final rule is
written so that asylum interviews occurring while the temporary
final rule is effective will be bound by the requirements at 8 CFR
208.9(h).
---------------------------------------------------------------------------

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 and second extensions, USCIS adapted
and modified its procedures to keep the workforce and public safe while
also striving to serve the customer. Outside of this rule, USCIS has
adapted to the pandemic by developing electronic workflows for
conducting interviews and completing the adjudication, and by
monitoring language trends and interpreter availability.
DHS noted in the original temporary final rule, first extension,
and second extension with modification, that it would evaluate the
public health concerns and resource allocations to determine whether to
extend the rule. DHS has determined that extending this temporary final
rule is necessary for public safety. Accordingly, DHS is extending this
temporary final rule for 365 days unless it is necessary to once again
extend at a later date. This temporary final rule continues to apply to
all affirmative asylum interviews conducted by USCIS across the nation.
USCIS has determined that an extension of 365 days is appropriate given
that: (1) The pandemic is ongoing; \35\ (2) the highly contagious
Omicron variant is circulating in the United States; \36\ (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; \37\ and (4) although as of March 6, 2022, hospitalizations
have decreased from January 2022, when they reached their highest 7-day
average admission rate since the start of the pandemic, individuals
continue to be hospitalized for COVID-19.\38\
---------------------------------------------------------------------------

\35\ See 86 FR 11599; 85 FR 15337; HHS, Renewal of Determination
that a Public Health Emergency exists.
\36\ CDC, Omicron Variant: What You Need to Know (updated Feb.
2, 2022), https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html; CDC, COVID Data Tracker: Variant Proportions
(updated Mar. 1, 2022), https://covid.cdc.gov/covid-data-tracker/#variant-proportions.
\37\ CDC, COVID Data Tracker--COVID-19 Vaccinations in the
United States; CDC, The Possibility of COVID-19 after Vaccination:
Breakthrough Infections.
\38\ CDC, COVID Data Tracker: New Admissions of Patients with
Confirmed COVID-19 Per 100,000 Population by Age Group, United
States.
---------------------------------------------------------------------------

USCIS first published this temporary final rule on September 23,
2020, and subsequently found it necessary to publish two extensions to
continue its mitigation efforts because of the ongoing pandemic.\39\
The initial temporary final rule and each extension had an effective
period of 180 days, which has resulted in this temporary final rule
being in effect for 540 days.\40\ Considering the period of time that
the pandemic has been ongoing, the number of times USCIS has had to
extend this temporary final rule, the continued uncertainty about
emerging variants, and the inability to predict when the COVID-19
pandemic will end, USCIS has determined that an additional extension of
180 days will be insufficient and a 365-day extension will better serve
the needs of the public and the agency. Extending this temporary final
rule for 365 days will provide the public and USCIS with greater
certainty and predictability about how long these mitigation efforts
will remain in place. That is, with the additional time, the agency can
proactively plan ahead and focus on providing consistent services to
asylum applicants rather than expending limited resources frequently
changing procedures and re-issuing guidance to staff and the public.
---------------------------------------------------------------------------

\39\ See 85 FR 59655 (Sept. 23, 2020); 86 FR 15072 (Mar. 22,
2021); 86 FR 51781 (Sept. 17, 2021).
\40\ Id.
---------------------------------------------------------------------------

Recognizing that the COVID-19 pandemic is ongoing and
unpredictable, DHS continues to constantly evaluate the public health
concerns and its mitigation efforts. Within the next 365 days, it is
possible that conditions may either improve or worsen. If conditions
improve and the health concerns posed by COVID-19 are resolved before
this temporary final rule expires, DHS will consider publishing a final
rule terminating this temporary final rule prior to the expiration of
this 365-day extension. However, if prior to the expiration of this
extension, conditions remain static or worsen, 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. After such evaluation and if another extension is
determined to be 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 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 discussed in this temporary
final rule. When it became clear to DHS that the continuing public
health emergency would warrant another extension of this temporary
final rule, there was not sufficient time to provide notice and receive
comment before the second extension would expire. Additionally, on
multiple occasions, agencies have relied on this exception to
promulgate both communicable disease-related \41\ and immigration-
related \42\ interim rules, as

[[Page 14761]]

well as to extend such rules.\43\ Recently, the Department of State
(DOS) and the Federal Emergency Management Agency (FEMA) promulgated or
extended rules to mitigate or address the COVID-19 pandemic. On
December 13, 2021, DOS issued a temporary final rule, Waiver of
Personal Appearance and In-Person Oath Requirement for Certain
Immigrant Visa Applicants Due to COVID-19, which provides flexibility
for consular officers to waive the personal appearance of certain
repeat immigrant visa applicants. DOS made the temporary final rule
effective for 24 months based upon the belief that after 24 months the
pandemic will be less acute and ordinary travel resumes.\44\ On April
10, 2020, FEMA published a temporary final rule allocating certain
health and medical resources for domestic use, so that these resources
may not be exported from the United States without explicit approval by
FEMA.\45\ Citing the spread of COVID-19 and the resulting strain on the
country's healthcare systems, FEMA explained the measures described in
the rule were imperative and necessary to respond to the pandemic.\46\
FEMA's original temporary final rule was extended on August 10, 2020,
and then extended again on December 31, 2020, until June 30, 2021.\47\
---------------------------------------------------------------------------

\41\ 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.'').
\42\ 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).
\43\ 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).
\44\ See 86 FR 70735.
\45\ See 85 FR 48113 (Aug. 10, 2020) and 85 FR 20195 (Dec. 31,
2020), respectively.
\46\ Id.
\47\ See 85 FR 86835.
---------------------------------------------------------------------------

DHS is publishing this third extension as a temporary final rule
because of the continuing COVID-19 pandemic and incorporates into this
extension the discussion of good cause from the original temporary
final rule and its extensions. As discussed earlier in this preamble,
effective January 14, 2022, the Secretary of HHS renewed the
determination that ``a public health emergency exists and has existed
since January 27, 2020 nationwide.'' \48\ On February 18, 2022, the
President issued a notice on the continuation of the state of the
National Emergency concerning the COVID-19 pandemic.\49\
---------------------------------------------------------------------------

\48\ HHS, Renewal of Determination That A Public Health
Emergency Exists; 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.
\49\ See 87 FR 10289.
---------------------------------------------------------------------------

As of March 4, 2022, there have been over 440 million confirmed
cases of COVID-19 identified globally, resulting in more than 5.9
million deaths.\50\ Approximately 78,428,884 cases have been identified
in the United States, with about 242,345 new cases identified in the 7
days preceding February 28, 2022, and approximately 947,625 reported
deaths due to the disease.\51\ Additionally, CDC is monitoring several
variants of the virus that causes COVID-19.\52\ Evidence suggests that
some variants may spread faster and more easily than others and at
least one variant may be associated with an increased risk of severe
illness.\53\ Although vaccines are widely accessible, there is wide
disparity in the percentages of vaccinated individuals by state.\54\
---------------------------------------------------------------------------

\50\ WHO Coronavirus (COVID-19) Dashboard.
\51\ Id.
\52\ CDC, SARS-CoV-2 Variant Classifications and Definitions.
\53\ CDC, What You Need to Know About Variants.
\54\ CDC, COVID Data Tracker--COVID-19 Vaccinations in the
United States.
---------------------------------------------------------------------------

Ongoing research demonstrates that while there is high
effectiveness of approved vaccines among eligible individuals, fully
vaccinated individuals continue to experience breakthrough COVID-19
infections and may be either symptomatic or asymptomatic.\55\
Nevertheless, CDC reports show that individuals who are unvaccinated
have a greater risk of testing positive for COVID-19 and a greater risk
of dying from COVID-19 than individuals who are fully vaccinated.\56\
Given the continuing national emergency caused by COVID-19, there are
still urgent and compelling circumstances to extend and continue this
temporary final rule. USCIS cannot predict when the pandemic will end
and believes that it is necessary to extend and continue this temporary
final rule for another 365 days or until conditions improve and the
health concerns posed by COVID-19 are mitigated to such a degree that
these safety efforts are no longer necessary.
---------------------------------------------------------------------------

\55\ CDC, The Possibility of COVID-19 after Vaccination:
Breakthrough Infections.
\56\ CDC, Rate of COVID-19 Cases and Deaths by Vaccination
Status.
---------------------------------------------------------------------------

Throughout the COVID-19 pandemic, USCIS has continued to experience
an increase in the affirmative asylum 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. The
increases continue presenting challenges to the agency and thus require
USCIS to keep these procedures in place for an additional 365 days.
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, and that moving expeditiously to make this change is in the
best interest of the public.
Based on the continuing health emergency, USCIS continues to
implement mitigation measures,\57\ 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. 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.
---------------------------------------------------------------------------

\57\ See USCIS Response to COVID-19.
---------------------------------------------------------------------------

As of March 7, 2022, USCIS had 440,185 asylum applications, on
behalf of 690,172 noncitizens, pending final adjudication. Ninety-five
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.\58\
---------------------------------------------------------------------------

\58\ 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 may 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 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

[[Page 14762]]

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 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 and 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
throughout the next year or until the health concerns posed by COVID-19
are resolved. As a result of the temporary final rule and subsequent
extensions, USCIS has conducted 32,012 total asylum interviews between
September 23, 2020 and March 7, 2022. This third extension is not
expected to result in any additional costs to the government. In
addition, even with the provision that permits, 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 temporary
final rule were not extended. In those limited circumstances, the
interpreter will still 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.
Such contract interpreters will continue to be provided at no cost
to the applicant. USCIS has an existing contract to provide telephonic
interpretation and monitoring in interviews for all of its case types.
USCIS has provided contract monitors for many years at interviews where
the applicant brings an interpreter. In other words, almost all
interviews that utilize a USCIS provided interpreter under this
temporary final rule would have required instead a contracted monitor
during asylum interviews conducted pre-pandemic. Additionally, the cost
of monitoring and interpretation are identical under the current
contract and monitors are no longer needed for interviews conducted
through a USCIS-provided contract interpreter. Therefore, the continued
extension of the temporary final rule is projected to be cost neutral
or negligible for the government because USCIS is already paying for
these services even without this rule.
In the 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 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 otherwise be
incurred due to 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 affirmative asylum 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 would
only span 365 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.
USCIS will continue to post updates on its Form I-589 website, https://www.uscis.gov/i-589, and other asylum and relevant web pages regarding
the interview requirements in this regulation, as well as provide
personal notice to applicants via the interview

[[Page 14763]]

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 March 16, 2022 through March 16, 2023, amend Sec.
208.9 by revising paragraph (h) introductory text to read as follows:

Sec. 208.9 Procedure for interview before an asylum officer.

* * * * *
(h) Asylum applicant interpreters. For asylum interviews conducted
between March 16, 2022, through March 16, 2023:
* * * * *

Alejandro Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2022-05636 Filed 3-15-22; 8:45 am]
BILLING CODE 9111-97-P