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.

Rules and Regulations Federal Register

51781 

Vol. 86, No. 178 

Friday, September 17, 2021 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 208 

[CIS No. 2671–20; DHS Docket No. USCIS– 

2020–0017] 

RIN 1615–AC59 

Asylum Interview Interpreter 

Requirement Modification Due to 

COVID–19 

AGENCY: U.S. Citizenship and 

Immigration Services (USCIS), 

Department of Homeland Security 

(DHS). 

ACTION: Temporary final rule; extension. 

SUMMARY: The Department of Homeland 

Security (DHS) is extending for a second 

time the effective date (for 180 days) of 

its temporary final rule that modified 

certain regulatory requirements to help 

ensure that USCIS may continue with 

affirmative asylum adjudications during 

the COVID–19 pandemic. This rule also 

provides that if a USCIS interpreter is 

unavailable, USCIS will either 

reschedule the interview and attribute 

the interview delay to USCIS for the 

purposes of the asylum employment 

authorization regulation, or USCIS may, 

in its discretion, allow the applicant to 

provide an interpreter. 

DATES: This temporary final rule is 

effective from September 20, 2021, 

through March 16, 2022. As of 

September 20, 2021, the expiration date 

of the temporary final rule published at 

85 FR 59655 (Sept. 23, 2020), which was 

extended at 86 FR 15072 (Mar. 22, 

2021), is further extended from 

September 20, 2021, to March 16, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Andria Strano, Acting Chief, Division of 

Humanitarian Affairs, Office of Policy 

and Strategy, U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security, 5900 Capital 

Gateway Drive, Camp Springs, MD 

20588–0009; telephone (240) 721–3000 

(not a toll-free call). 

Individuals with hearing or speech 

impairments may access the telephone 

numbers above via TTY by calling the 

toll-free Federal Information Relay 

Service at 1–877–889–5627 (TTY/TDD). 

SUPPLEMENTARY INFORMATION: 

I. Legal Authority To Issue This Rule 

and Other Background 

A. Legal Authority 

The Secretary of Homeland Security 

(Secretary) takes this action pursuant to 

his authorities concerning asylum 

determinations. The Homeland Security 

Act of 2002 (HSA), Public Law 107–296, 

as amended, transferred many functions 

related to the execution of Federal 

immigration law to the newly created 

DHS. The HSA amended the 

Immigration and Nationality Act (INA 

or the Act), charging the Secretary ‘‘with 

the administration and enforcement of 

this chapter and all other laws relating 

to the immigration and naturalization of 

aliens,’’ INA 103(a)(1), 8 U.S.C. 

1103(a)(1), and granted the Secretary the 

power to take all actions ‘‘necessary for 

carrying out’’ the immigration laws, 

including the INA, id. 1103(a)(3). The 

HSA also transferred to DHS 

responsibility for affirmative asylum 

applications made outside the removal 

context. See 6 U.S.C. 271(b)(3). That 

authority has been delegated within 

DHS to U.S. Citizenship and 

Immigration Services (USCIS). USCIS 

asylum officers determine, in the first 

instance, whether a noncitizen’s 

affirmative asylum application should 

be granted. See 8 CFR 208.4(b), 208.9. 

With limited exception, the Department 

of Justice Executive Office for 

Immigration Review has exclusive 

authority to adjudicate asylum 

applications filed by noncitizens who 

are in removal proceedings. See INA 

103(g), 240; 8 U.S.C. 1103(g), 1229a. 

This broad division of functions and 

authorities informs the background of 

this rule. 

B. Legal Framework for Asylum 

Asylum is a discretionary benefit that 

generally can be granted to eligible 

noncitizens who are physically present 

or who arrive in the United States, 

irrespective of their status, subject to the 

requirements in section 208 of the INA, 

8 U.S.C. 1158, and implementing 

regulations, see 8 CFR parts 208, 1208. 

Section 208(d)(5) of the INA, 8 U.S.C. 

1158(d)(5), imposes several mandates 

and procedural requirements for the 

consideration of asylum applications. 

Congress also specified that the 

Attorney General and Secretary of 

Homeland Security ‘‘may provide by 

regulation for any other conditions or 

limitations on the consideration of an 

application for asylum,’’ so long as 

those limitations are ‘‘not inconsistent 

with this chapter.’’ INA208(d)(5)(B), 8 

U.S.C. 1158(d)(5)(B). Thus, the current 

statutory framework leaves the Attorney 

General (and, after the HSA, also the 

Secretary) significant discretion to 

regulate consideration of asylum 

applications. USCIS regulations 

promulgated under this authority set 

agency procedures for asylum 

interviews, and require that applicants 

unable to communicate in English 

‘‘must provide, at no expense to the 

Service, a competent interpreter fluent 

in both English and the applicant’s 

native language or any other language in 

which the applicant is fluent.’’ 8 CFR 

208.9(g). This requirement means that 

all asylum applicants who cannot 

communicate in English must bring an 

interpreter to their interview. Doing so, 

as required by the regulation, poses a 

serious health risk because of the 

COVID–19 pandemic. 

Accordingly, this temporary rule 

extends the temporary final rule 

published at 85 FR 59655 for a second 

time to continue to mitigate the spread 

of COVID–19 by seeking to slow the 

transmission and spread of the disease 

during asylum interviews before USCIS 

asylum officers. To that end, this 

temporary rule will extend the 

requirement in certain instances 

allowing noncitizens interviewed for 

this discretionary asylum benefit to use 

USCIS-provided interpreters during 

interviews. This temporary rule also 

provides that if a USCIS interpreter is 

unavailable, USCIS will either 

reschedule the interview and attribute 

the interview delay to USCIS for the 

purposes of employment authorization 

under 8 CFR 208.7, or USCIS may, in its 

discretion, allow the applicant to 

provide an interpreter. 

C. The COVID–19 Pandemic 

On January 31, 2020, the Secretary of 

Health and Human Services (HHS) 

declared a public health emergency 

under section 319 of the Public Health 

Service Act (42 U.S.C. 247d), in 

response to COVID–19, which is caused 

51782 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

1HHS, Determination that a Public Health 

Emergency Exists (Jan. 31, 2020), https:// 

www.phe.gov/emergency/news/healthactions/phe/ 

Pages/2019-nCoV.aspx. 2Notice on the Continuation of the National 

Emergency Concerning the Coronavirus Disease 

2019 (COVID–19) Pandemic, 86 FR 11599 (Feb. 26, 

2021); Proclamation 9994 of March 13, 2020, 

Declaring a National Emergency Concerning the 

Coronavirus Disease (COVID–19) Outbreak, 85 FR 

15337 (Mar. 18, 2020). 

3HHS, Renewal of Determination that a Public 

Health Emergency Exists (July 19, 2021), https://

www.phe.gov/emergency/news/healthactions/phe/ 

Pages/COVID-19July2021.aspx. 

4Centers for Disease Control and Prevention 

(CDC), SARS–CoV–2 Variant Classifications and 

Definitions (Aug. 3, 2021), https://www.cdc.gov/ 

coronavirus/2019-ncov/variants/variant-info.html

?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov

%2Fcoronavirus%2F2019-ncov%2Fcasesupdates%2Fvariant-surveillance%2Fvariantinfo.html. 

5CDC, Variants of the Virus (July 29, 2021), 

https://www.cdc.gov/coronavirus/2019-ncov/ 

variants/variant.html. 

6Cov-Lineages, Global Lineage Report: B.1.617.2 

(May 19, 2021); CDC, SARS–CoV–2 Variant 

Classifications and Definitions (Aug. 03, 2021); 

CDC, Delta Variant: What We Know About the 

Science (Aug. 06, 2021), https://www.cdc.gov/ 

coronavirus/2019-ncov/variants/delta-variant.html. 

7 Id. 

8 Id. 

9World Health Organization (WHO), Weekly 

epidemiological update—7 September 2021 (Sept. 

07, 2021), available at https://www.who.int/ 

publications/m/item/weekly-epidemiologicalupdate-on-covid-19--7-september-2021; WHO, 

WHO Coronavirus (COVID–19) Dashboard (Sept. 

09, 2021), https://covid19.who.int/. 

10WHO, Weekly epidemiological update. 

11FDA, FDA Approves First COVID–19 Vaccine 

(Aug. 23, 2021), https://www.fda.gov/news-events/ 

press-announcements/fda-approves-first-covid-19- 

vaccine. 

12FDA, Learn More About COVID–19 Vaccines 

From the FDA (content current as of July 12, 2021), 

https://www.fda.gov/consumers/consumer-updates/ 

learn-more-about-covid-19-vaccines-fda. 

13 Id. Janssen Biotech Inc., the manufacturer of 

the third vaccine granted an EUA by the FDA, is 

a Janssen Pharmaceutical Company of Johnson & 

Johnson. 

14CDC, Moderna COVID–19 Vaccine Overview 

and Safety (updated June 11, 2021), https://

www.cdc.gov/coronavirus/2019-ncov/vaccines/ 

different-vaccines/Moderna.html; CDC, PfizerBioNTech COVID–19 Vaccine Overview and Safety 

(updated June 24, 2021), https://www.cdc.gov/ 

coronavirus/2019-ncov/vaccines/different-vaccines/ 

Pfizer-BioNTech.html. 

15CDC, Johnson & Johnson’s Janssen COVID–19 

Vaccine Overview and Safety (updated June 23, 

2021), https://www.cdc.gov/coronavirus/2019-ncov/ 

vaccines/different-vaccines/janssen.html. 

16CDC, COVID Data Tracker—COVID–19 

Vaccinations in the United States (Sept. 09, 2021), 

https://covid.cdc.gov/covid-data-tracker/#

vaccinations_vacc-total-admin-rate-total. 

17 Id. 

18CDC, Key Things to Know About COVID–19 

Vaccines (updated June 25, 2021), https://

www.cdc.gov/coronavirus/2019-ncov/vaccines/ 

keythingstoknow.html?CDC_AA_refVal=https

%3A%2F%2Fwww.cdc.gov%2Fcoronavirus

%2F2019-ncov%2Fvaccines%2F8-things.html. 

19National Insitutes of Health (NIH), COVID–19 

Treatment Guidelines: Care of Critically Ill Adult 

Patients with COVID–19 (July 08, 2021), https://

www.covid19treatmentguidelines.nih.gov/ 

management/critical-care/summaryrecommendations/. 

20CDC, Morbidity and Mortality Weekly Report 

(MMWR): COVID–19 Vaccine Breakthrough 

Infections Reported to CDC—United States, January 

1–April 30, 2021 (May 28, 2021), https://

www.cdc.gov/mmwr/volumes/70/wr/ 

mm7021e3.htm. 

21 Id. 

22 Id. 

23 Id. 

24CDC, COVID–19 Vaccine Breakthrough Case 

Investigation and Reporting (Sept. 01, 2021), 

https://www.cdc.gov/vaccines/covid-19/healthdepartments/breakthrough-cases.html. 

by the SARS–CoV–2 virus.1 On 

February 24, 2021, the President issued 

a continuation of the National 

Emergency concerning the COVID–19 

pandemic.2 Effective July 20, 2021, HHS 

renewed the determination that ‘‘a 

public health emergency exists and has 

existed since January 27, 2020 

nationwide.’’ 3 A more detailed 

background discussion of the COVID–19 

pandemic is found in the original 

temporary rule, as well as in the first 

extension of this rule, and USCIS 

incorporates the discussions of the 

pandemic into this extension with 

modification. 85 FR 59655; 85 FR 

15072. 

Since publication of the original 

temporary rule and first extension, 

several variants of the virus that causes 

COVID–19 have been, and continue to 

be, reported in the United States.4

Evidence suggests that these variants 

may spread more quickly and easily 

than others and at least one variant may 

be associated with an increased risk of 

death.5 The COVID–19 Delta variant 

was first found in India in October 

2020.6 Cases were discovered in the 

United States in late January 2021, and 

Delta has quickly become the 

predominant virus strain in the United 

States.7 It was labeled a Variant of 

Concern (VOC) by the HHS SARS–CoV– 

2 Interagency Group (SIG), which 

defines VOCs as those with evidence of 

increased transmissibility and severe 

disease, reduced effectiveness of 

treatments or vaccines, and diagnostic 

detection failures.8

As of September 9, 2021, there have 

been approximately 222,406,582 cases 

of COVID–19 identified globally, 

resulting in approximately 4,592,934 

deaths. Approximately 40,152,521 cases 

have been identified in the United 

States, with about 1,297,399 new cases 

identified in the 7 days preceding 

September 5th, and approximately 

646,131 reported deaths due to the 

disease.9 In the week preceding 

September 5th, the United States was 

the country that reported the highest 

number of new cases, with a 38 percent 

increase.10

On August 23, 2021, the U.S. Food 

and Drug Administration (FDA) granted 

approval for the Pfizer-BioNTech 

COVID–19 vaccine for individuals 16 

years and older, now marketed as 

Comirnaty.11 Prior to this, the FDA had 

issued emergency use authorizations 

(EUAs) for three COVID–19 vaccines, 

including the Pfizer-BioNTech 

vaccine.12 The two other vaccines that 

continue to be authorized for emergency 

use are produced by Moderna and 

Janssen.13 The Pfizer-BioNTech and 

Moderna vaccines require two doses to 

be effective at preventing COVID–19 

illness.14 The Janssen vaccine is a single 

dose.15 As of September 9, 2021, 

approximately 177,433,044 people in 

the United States had completed a 

COVID–19 vaccination regimen.16

While the vaccine is now widely 

accessible in the United States, 

geographic data indicates a wide 

disparity in the percentages of fully 

vaccinated individuals by state, ranging 

from 39.6 percent in Alabama to 68.4 

percent in Vermont, not taking into 

account United States territories.17

Health experts still do not know what 

percentage of people in the U.S. will 

need to be vaccinated before enough 

individuals in the community are 

protected to meaningfully reduce the 

spread of the disease from person to 

person, how effective the vaccines are 

against new variants, and how long the 

vaccines protect people.18 Furthermore, 

hospitalization and mechanical 

respiratory support may still be required 

in severe cases of COVID–19 illness, 

irrespective of vaccination status.19

Ongoing research demonstrates that 

while there is high vaccine 

effectiveness, fully vaccinated 

individuals continue to experience 

breakthrough COVID–19 infections and 

may be either symptomatic or 

asymptomatic.20 As of April 30, 2021, 

approximately 10,262 breakthrough 

infections were reported from 46 U.S. 

states and territories.21 This is likely a 

substantial undercount of cases, as CDC 

states that the current national 

surveillance system relies on voluntary 

reporting and data are only available for 

a small segment of reported cases.22 The 

data are further limited because on May 

01, 2021, the CDC transitioned from 

tracking all reported COVID–19 vaccine 

breakthrough infections to only those 

among patients who are hospitalized or 

die.23 As of August 30, 2021, CDC data 

from 49 U.S. states and territories 

indicates 12,908 patients with patients 

with SARS–CoV–2 breakthrough 

infections were hospitalized or died.24

Testing is available to confirm 

suspected cases of COVID–19 infection. 

At present, the time it takes to receive 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51783 

25CDC, Overview of Testing for SARS–CoV–2 

(COVID–19) (Aug. 02, 2021), https://www.cdc.gov/ 

coronavirus/2019-ncov/hcp/testing-overview.html. 

26CDC, Test for Current Infection (Viral Test) 

(Aug. 02, 2021), https://www.cdc.gov/coronavirus/ 

2019-ncov/testing/diagnostic-testing.html. 

27CDC, SARS–CoV–2 Variant Classifications and 

Definitions; Cov-Lineages, Global Lineage Report: 

B.1.617.2. 

28CDC, Delta Variant: What We Know About the 

Science. 

29CDC, Outbreak of SARS–CoV–2 Infections, 

Including COVID–19 Vaccine Breakthrough 

Infections, Associated with Large Public 

Gatherings—Barnstable County, Massachusetts, July 

2021 (Aug. 06, 2021), www.cdc.gov/mmwr/volumes/ 

70/wr/mm7031e2.htm. 

30 Id. 

31CDC, COVID Data Tracker: Variant Proportions 

(Sept. 07, 2021), https://covid.cdc.gov/covid-datatracker/#variant-proportions; CDC, Delta Variant: 

What We Know About the Science. 

32CDC, Requirement for Face Masks on Public 

Transportation Conveyances and at Transportation 

Hubs (Aug. 27, 2021), https://www.cdc.gov/ 

coronavirus/2019-ncov/travelers/face-masks-publictransportation.html. 

33CDC, Public Health Guidance for Potential 

COVID–19 Exposure Associated with Travel (July 

02, 2021), https://www.cdc.gov/coronavirus/2019- 

ncov/php/risk-assessment.html; CDC, Guidance for 

Organizing Large Events and Gatherings (May 20, 

2021), https://www.cdc.gov/coronavirus/2019-ncov/ 

community/large-events/considerations-for-eventsgatherings.html; CDC, Considerations for Restaurant 

and Bar Operators (June 14, 2021), https://

www.cdc.gov/coronavirus/2019-ncov/community/ 

organizations/business-employers/barsrestaurants.html. 

34 Department of Homeland Security, Effective 

Immediately, Updated Mask Guidance for All DHS 

Workspaces (July 28, 2021). 

35CDC, COVID–19 Forecasts: Cases (Sept. 08, 

2021), https://www.cdc.gov/coronavirus/2019-ncov/ 

science/forecasting/forecasts-cases.html?CDC

_AA_refVal=https%3A%2F%2F

www.cdc.gov%2Fcoronavirus%2F2019- 

ncov%2Fcases-updates%2Fforecasts-cases.html; 

CDC, COVID–19 Forecasts: Hospitalizations (Sept. 

08, 2021), https://www.cdc.gov/coronavirus/2019- 

ncov/science/forecasting/hospitalizationsforecasts.html?CDC_AA_refVal=https

%3A%2F%2Fwww.cdc.gov%2Fcoronavirus

%2F2019-ncov%2Fcases-updates%2F

hospitalizations-forecasts.html; CDC, COVID–19 

Forecasts: Deaths (Sept. 08, 2021), https:// 

www.cdc.gov/coronavirus/2019-ncov/science/ 

forecasting/forecasting-us.html?CDC_AA

_refVal=https%3A%2F%2

Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2F

covid-data%2Fforecasting-us.html. 

36CDC, COVID Data Tracker—COVID–19 

Vaccinations in the United States; CDC, Science 

Brief: Transmission of SARS–CoV–2 in K–12 

Schools and Early Care and Education Programs— 

Updated (July 09, 2021), https://www.cdc.gov/ 

coronavirus/2019-ncov/science/science-briefs/ 

transmission_k_12_schools.html. 

37 Id. 

38 Jeanine Santucci and Grace Hauck, At least 

1,000 schools in 35 states have closed for in-person 

learning since the start of the school year: COVID– 

19 updates, USA TODAY (Sept. 5, 2021), https:// 

www.usatoday.com/story/news/health/2021/09/05/ 

covid-updates-mu-variant-spreads-hawaii-begstravelers-stay-away/5735064001/. 

39CDC, COVID Data Tracker—COVID—19 

Vaccinations in the United States; CDC, Science 

Brief: Transmission of SARS–CoV–2 in K–12 

Schools and Early Care and Education Programs— 

Updated (July 09, 2021), https://www.cdc.gov/ 

coronavirus/2019-ncov/science/science-briefs/

transmission_k_12_schools.html. 

40CDC, COVID–19 Vaccine Booster Shot (Aug. 

20, 2021), https://www.cdc.gov/coronavirus/2019- 

ncov/vaccines/booster-shot.html. 

41 Id. 

42NIH, The role of seasonality in the spread of 

COVID–19 pandemic (Feb. 19, 2021), https://

www.ncbi.nlm.nih.gov/pmc/articles/PMC7892320/. 

43 Id. 

results varies based on, among other 

factors, type of test used, laboratory 

capacity, and geographic location.25

CDC guidance states that individuals 

who were exposed to a person with 

COVID–19 may later develop symptoms 

and should self-quarantine for 14 days, 

even with receipt of negative test 

results.26

There are also multiple variants of the 

virus that have resulted in COVID–19 

infections in the United States, 

including the now predominant Delta 

variant.27 While vaccination is key in 

preventing severe disease like 

hospitalization or death, it may be less 

effective in preventing infection or 

transmission of the Delta variant since 

it is more contagious.28 Significant Delta 

variant-related outbreaks have occurred 

in the United States in recent months, 

most recently in Massachusetts after 

multiple large-scale summer events 

were held from July 3–17, 2021.29 After 

these events, 469 individuals contracted 

the virus, 74 percent of whom were 

fully vaccinated, and the outbreak was 

a major catalyst in the CDC’s subsequent 

guidance to resume indoor mask 

mandates.30 According to statistical 

models and genomic surveillance 

programs, the Delta variant now 

accounts for approximately 98.9 percent 

of new cases nationally and current data 

shows that it is having a 

disproportionately severe impact on 

unvaccinated populations.31

There are numerous challenges to 

resuming pre-COVID–19 operations, 

largely due to the emergence of the 

Delta variant. CDC has posted guidance 

for states, businesses, and the general 

public emphasizing the need for 

continued mask mandates on public 

transportation and airplanes, as wearing 

masks that completely cover the mouth 

and nose reduces the spread of COVID– 

19.32 CDC is also encouraging 

restaurants and bars to maintain social 

distancing and mask rules and asking 

individuals to avoid large events and 

gatherings.33 As a result of CDC’s 

renewed mask guidance, the Office of 

Management and Budget (OMB) issued 

renewed mask guidelines on July 27, 

2021, for employees, contractors, and 

visitors to Federal buildings which went 

into effect for DHS on July 28, 2021.34

Further, CDC predictive modeling 

forecasts a continued national increase 

in new cases, hospitalizations, and 

deaths over four week intervals. By the 

week ending October 2, 2021, forecasts 

expect a weekly increase of 

approximately 430,000 to 1,520,000 new 

cases, 6,400 to 19,500 new 

hospitalizations, and 6,900 to 18,000 

new deaths, taking into account 

variations in social distancing and 

prevention measures across states. 

Variations beyond social distancing, 

including the reopening of schools, may 

also have an impact on these rates.35

Studies conducted early in the 

pandemic indicated low rates of 

transmission among children and as of 

September 9, 2021, approximately 62.5 

percent of individuals 12 years of age 

and older were fully vaccinated.36 Since 

these early studies, infection rates have 

increased as opportunities for 

transmission, including school and 

summer camp attendance, expanded.37

It has been reported that at least 1,000 

schools across 35 states have closed for 

in-person learning because of COVID–19 

since the beginning of the 2021 school 

year.38 In order to minimize the spread, 

CDC currently recommends screening, 

physical distancing, taking precautions 

when participating in team or close 

contact sports, and consistent mask use, 

as inconsistent mask policies have 

contributed to school outbreaks.39

Finally, as the annual influenza season 

approaches, questions and concerns 

over increased transmission of SARS– 

CoV–2 and decreases in immunity 

remain. CDC currently recommends a 

booster shot beginning in the fall of 

2021 for certain individuals who 

received the Pfizer or Moderna 

vaccines.).40 CDC’s decision to begin 

booster shots in the fall of 2021 is due 

to the current information about the 

vaccine effectiveness and the impact of 

variants on vaccine effectiveness.41 A 

recent study indicated that the 

infectivity and morbidity rates of 

COVID–19 are higher in colder climates 

and the transmissibility of the virus is 

affected by meteorological factors such 

as temperature and humidity.42 This, 

alongside the increased demand for 

healthcare resources due to seasonal 

influenza and the low likelihood that 

herd immunity will be achieved in 

2021, should be taken into account 

when developing future intervention 

measures.43

II. Purpose of This Temporary Rule 

USCIS continues its efforts to protect 

the health and safety of the employees 

and the public, including: Requiring 

facial covers for all employees and 

members of the public above the age of 

51784 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

44Facial coverings were part of the initial USCIS 

COVID mitigation efforts until the CDC and then 

DHS issued new guidance on May 14, 2021 that 

fully vaccinated individuals were no longer 

required to wear masks in DHS space and that 

temperature checks to enter DHS controlled space 

were also to be discontinued. On July 28, 2021, 

DHS issued guidance that all Federal employees, 

onsite contractors, and visitors, regardless of 

vaccination status or level of COVID transmission 

in the local area, are required to wear a mask inside 

all DHS workspaces and Federal buildings. Further 

guidance to the public as to the USCIS Response 

to COVID–19 and Operational Status can be found 

here: https://www.uscis.gov/about-us/uscisresponse-to-covid-19. 

45Between September 23, 2020 and March 10, 

2021, USCIS conducted 7,764 asylum interviews. 

86 FR at 15074. 

46The interpreter interview provisions can be 

found in two parallel sets of regulations: 

Regulations under the authority of DHS are 

contained in 8 CFR part 208; and regulations under 

the authority of the Department of Justice (DOJ) are 

contained in 8 CFR part 1208. Each set of 

regulations contains substantially similar 

provisions regarding asylum interview processes, 

and each articulates the interpreter requirement for 

interviews before an asylum officer. Compare 8 CFR 

208.9(g), with 8 CFR 1208.9(g). This temporary final 

rule revises only the DHS regulations at 8 CFR 

208.9. Notwithstanding the language of the parallel 

DOJ regulations in 8 CFR 1208.9, as of the effective 

date of this action, the revised language of 8 CFR 

208.9(h) is binding on DHS and its adjudications for 

180 days. DHS would not be bound by the DOJ 

regulation at 8 CFR 1208.9(g). 

47 DHS notes that this extension does not modify 

8 CFR 208.9(g); rather the extension temporary rule 

is written so that any asylum interviews occurring 

while the temporary rule is effective will be bound 

by the requirements at 8 CFR 208.9(h). 

two; 44 limiting the number of 

employees and members of the public in 

the office; posting social distance 

guidelines and asking visitors to answer 

health screening questions before 

entering; currently conducting 

interviews from separate offices to 

ensure that employees are not in the 

same room as members of the public; 

and installing plexiglass where 

necessary to provide a barrier for 

employees when social distancing is not 

possible. 

Between March 10, 2021, and August 

8, 2021, USCIS conducted 9,136 asylum 

interviews, for a total of 16,900 

interviews since September 23, 2020.45

The original temporary rule, 

implemented on September 23, 2020, 

and its extension implemented on 

March 22, 2021, and other noted public 

safety measures have helped mitigate 

the impact of COVID–19 and have been 

effective in keeping our workforce and 

the public safe. As of August 9, 2021, 

there have been 1,927 confirmed cases 

of COVID–19 exposure among USCIS 

employees and contractors. The USCIS 

exposure rate (6.8%) remains below the 

national average (10.6%) as of August 7, 

2021. 

Therefore, DHS has determined that it 

is in the best interest of the public and 

USCIS employees and contractors to 

extend the temporary rule for another 

180 days. Under this extension with 

modification, asylum applicants who 

are unable to proceed with the interview 

in English will ordinarily be required to 

proceed with government-provided 

telephonic contract interpreters 

provided the applicants speak one of the 

47 languages found on the Required 

Languages for Interpreter Services 

Blanket Purchase Agreement/U.S. 

General Services Administration 

Language Schedule (‘‘GSA Schedule’’). 

If the applicant does not speak or elects 

to speak a language not on the GSA 

Schedule, the applicant will be required 

to bring his or her own interpreter who 

is fluent in English to the interview and 

the elected language not on the GSA 

schedule. DHS is also amending 8 CFR 

208.9(h)(1) by allowing, in USCIS’ 

discretion, an applicant for asylum to 

provide an interpreter when a USCIS 

interpreter is unavailable. Specifically, 

if a USCIS interpreter is unavailable, 

USCIS will either reschedule the 

interview and attribute the interview 

delay to USCIS for the purposes of 

employment authorization pursuant to 8 

CFR 208.7, or USCIS may, in its 

discretion, allow the applicant to 

provide an interpreter. 

DHS incorporates into this second 

extension with modification, the 

justifications, as well as the discussion 

on the benefits of providing telephonic 

contract interpreters in reducing the risk 

of contracting COVID–19 for applicants, 

attorneys, interpreters, and USCIS 

employees from the original temporary 

rule. 

III. Discussion of Regulatory Change: 8 

CFR 208.9(h) 46

DHS has determined that there are 

reasonable grounds for considering 

potential exposure to SARS–CoV–2, 

including any emerging variants, as a 

public health concern and that these 

grounds are sufficient to continue to 

modify the interpreter requirement for 

asylum applicants to lower the number 

of in-person attendees at asylum 

interviews. For 180 days following 

publication of this temporary final rule, 

DHS will continue to require nonEnglish speaking asylum applicants 

appearing before USCIS to proceed with 

the asylum interview using USCIS’ 

interpreter services if they are fluent in 

one of the 47 languages as discussed in 

the temporary rule at 85 FR at 59657.47

DHS is also amending 8 CFR 208.9(h)(1) 

by allowing, in USCIS’ discretion, an 

applicant for asylum to provide an 

interpreter when a USCIS interpreter is 

unavailable. In these limited 

circumstances, if a USCIS interpreter is 

unavailable, USCIS will either 

reschedule the interview and attribute 

the interview delay to USCIS for the 

purposes of employment authorization 

pursuant to 8 CFR 208.7, or USCIS may, 

in its discretion, allow the applicant to 

provide an interpreter. The interpreter 

will be required to follow USCIS 

COVID–19 protocols in place at the time 

of the interview, including sitting in a 

separate office. Once this rule is no 

longer in effect, asylum applicants 

unable to proceed with an interview in 

English before a USCIS asylum officer 

will be required to provide their own 

interpreters under 8 CFR 208.9(g). 

Allowing an applicant for asylum to 

provide an interpreter when a USCIS 

interpreter is unavailable is important 

and to the benefit of the applicant for 

several reasons. In some instances, due 

to a variety of issues including 

competing demands in other caseloads, 

contractor availability, and an increased 

demand for certain languages, USCIS 

may have knowledge in advance of the 

interview, that a contract interpreter 

will not be available for a certain 

language during the time of the 

interview. In those instances, USCIS 

may notify the applicant that an 

interpreter is unavailable and give the 

applicant an opportunity to provide 

their own interpreter for that interview 

and not cause further delay in the case. 

This will help reduce unnecessary 

reschedules and prolonged delays and 

will help alleviate the burden 

rescheduling the interview could place 

on all parties involved, including the 

applicant, the applicant’s representative 

(if applicable), and the local USCIS 

office. Providing advance notice of the 

unavailability of an interpreter and the 

opportunity for applicants to provide 

their own interpreter will make the 

process more efficient, reduce the 

number of delays, and allow applicants 

to proceed with their interview. This 

modification to the governmentprovided telephonic interpreter 

requirement will not disadvantage 

applicants who cannot provide their 

own interpreter. Such an applicant 

would be in the same position they 

would have been without this change to 

the regulation, and if an applicant is 

unable to locate a competent interpreter 

once notified of the unavailability of a 

contract interpreter, the interview will 

be rescheduled and the reschedule 

delay will be attributed to USCIS for 

purposes of employment authorization. 

While USCIS cannot safely 

accommodate every interview being 

conducted if all applicants are required 

to bring an interpreter in person, as 

explained in this preamble, in these 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51785 

48See USCIS Response to COVID–19: Asylum 

Appointments, available at https://www.uscis.gov/ 

about-us/uscis-response-to-covid-19. 

49See USCIS Visitor Policy, available at https:// 

www.uscis.gov/about-us/uscis-visitor-policy. 

50See Delta Variant: What We Know About the 

Science, available at https://www.cdc.gov/ 

coronavirus/2019-ncov/variants/delta-variant.html 

(last visited Aug. 31, 2021). 

51See 86 FR 11599; 85 FR 15337; HHS, Renewal 

of Determination that a Public Health Emergency 

exists. 

52CDC, Delta Variant: What We Know About the 

Science. 

53CDC, MMWR; CDC, COVID Data Tracker— 

COVID–19 Vaccinations in the United States. 

54CDC, COVID–19 Forecasts: Cases; NIH, The 

role of seasonality in the spread of COVID–19 

pandemic; Johns Hopkins Bloomberg School of 

Public Health, Will There be a Fall 2021 Resurgence 

of COVID–19 in the U.S.? (June 17, 2021), https:// 

publichealth.jhu.edu/2021/will-there-be-a-fall-2021- 

resurgence-of-covid-19-in-the-us. 

limited circumstances where there is 

advance knowledge of the unavailability 

of a contract interpreter and an 

applicant is able to locate a competent 

interpreter, USCIS may, within its 

discretion, accommodate the applicant’s 

interpreter by following the same 

COVID–19 protocols in place at the time 

of interview that allow applicants and 

those necessary to participate in the 

interview to attend interviews in person 

safely. USCIS will continue to apply the 

COVID–19 protocols in place at the time 

of the interview, including relying on 

available technology to ensure that the 

officer, applicant, interpreter, witnesses, 

and legal representative sit in separate 

rooms to fully and safely participate in 

the interview while maintaining social 

distancing.48 Interpreters attending 

appointments with applicants under 

these limited circumstances will also be 

expected to follow the USCIS Visitor 

Policy requiring face coverings, 

maintaining social distancing during 

screening and while in USCIS space, 

and other guidance regarding exposure 

to COVID–19.49 This is consistent with 

current practices for an applicant who 

either does not speak a language on the 

GSA Schedule or elects to speak a 

language that is not on the GSA 

Schedule, and thus is required to bring 

his or her own interpreter to the 

interview who is fluent in English and 

the elected language (not on the GSA 

Schedule). 

This rule’s modification to 8 CFR 

208.9(h)(1), giving USCIS discretion to 

allow asylum applicants to bring their 

own interpreter when a contract 

interpreter is unavailable will help 

advance the agency’s mission to fairly 

adjudicate immigration benefits. By 

building in flexibility for USCIS when 

an interpreter fluent in a language 

included in the GSA Schedule will be 

unavailable at the time of an asylum 

interview, USCIS will be better 

positioned to leverage its resources. In 

practice this will involve asylum offices 

evaluating their office space capacity 

and available asylum staff on a 

continuous basis to schedule cases in a 

manner that is consistent with social 

distancing guidelines and other noted 

public safety measures. Because USCIS 

will not schedule more cases than 

capacity permits under the COVID–19 

guidelines, exceptions made to the 

government-contract interpreter 

requirement under this temporary final 

rule should not result in increased 

exposure or individuals occupying the 

same physical space at a given time. 

These practices will also help address 

the recent emergence of the Delta 

variant, which as previously discussed, 

presents numerous challenges to 

resuming pre-COVID–19 operations, and 

which can be mitigated through the 

safety measures currently employed by 

USCIS.50 USCIS will continue to 

employ the same space planning and 

scheduling mechanisms to factor in the 

limited cases where USCIS is unable to 

provide a contract interpreter. USCIS 

will therefore have more flexibility to 

adapt to operational demands by 

proactively addressing the needs of 

applicants who would otherwise remain 

uninterviewed. 

Given the unique nature of the 

pandemic and the multiple challenges it 

has presented in the context of USCIS 

operations, the agency has had to 

modify its policies and procedures to 

adapt. Through the original temporary 

final rule and the first extension, USCIS 

adapted its procedures to keep the 

workforce and public safe while also 

striving to serve the customer. USCIS 

has adapted in other ways by 

developing electronic workflows for 

conducting interviews and completing 

the adjudication, and by monitoring 

language trends and interpreter 

availability. This second extension with 

the modification for applicants to bring 

their own interpreter under certain 

circumstances, is in keeping with the 

original goals of the temporary final 

rule, and gives the agency an 

opportunity to more effectively meet the 

needs of individuals seeking protection. 

DHS noted in the original temporary 

final rule and first extension that it 

would evaluate the public health 

concerns and resource allocations to 

determine whether to extend the rule. 

DHS has determined that extending this 

rule is necessary for public safety, and 

accordingly, DHS is extending this rule 

for 180 days unless it is further 

extended at a later date. This temporary 

rule continues to apply to all asylum 

interviews conducted by USCIS across 

the nation. USCIS has determined that 

an extension of 180 days is appropriate 

given that: (1) The pandemic is 

ongoing; 51 (2) several variants of the 

virus are circulating in the United 

States, with the highly contagious Delta 

variant as the dominant strain; 52 (3) 

while vaccines are widely available, 

data indicates a wide disparity in the 

percentages of fully vaccinated 

individuals by state, and fully 

vaccinated individuals continue to 

experience breakthrough SARS–CoV–2 

infections; 53 and (4) certain variables, 

including the reopening of schools and 

cold weather seasonal changes, are 

likely to cause an increase in COVID–19 

infections.54 Health experts are still 

learning how easily variants of the virus 

can be transmitted and how effectively 

the currently approved and authorized 

vaccines provide protection. Prior to the 

expiration of this extension to the 

temporary rule with modification, DHS 

will again evaluate the public health 

concerns and resource allocations to 

determine if another extension is 

appropriate to further the goals of 

promoting public safety. If necessary, 

DHS would publish any such extension 

via a rulemaking in the Federal 

Register. 

IV. Regulatory Requirements 

A. Administrative Procedure Act (APA) 

DHS is issuing this extension, 

including the modification to allow, in 

USCIS’ discretion, an applicant for 

asylum to provide an interpreter when 

a USCIS interpreter is unavailable, as a 

temporary final rule pursuant to the 

APA’s ‘‘good cause’’ exception. 5 U.S.C. 

553(b)(B). DHS may forgo notice-andcomment rulemaking and a delayed 

effective date because the APA provides 

an exception from those requirements 

when an agency ‘‘for good cause finds 

. . . that notice and public procedure 

thereon are impracticable, unnecessary, 

or contrary to the public interest.’’ 5 

U.S.C. 553(b)(B); see 5 U.S.C. 553(d)(3). 

The good cause exception for forgoing 

notice-and-comment rulemaking 

‘‘excuses notice and comment in 

emergency situations, or where delay 

could result in serious harm.’’ Jifry v. 

FAA, 370 F.3d 1174, 1179 (D.C. Cir. 

2004). Although the good cause 

exception is ‘‘narrowly construed and 

only reluctantly countenanced,’’ Tenn. 

Gas Pipeline Co. v. FERC, 969 F.2d 

1141, 1144 (D.C. Cir 1992), DHS has 

appropriately invoked the exception in 

this case, for the reasons set forth in this 

51786 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

55HHS 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.’’). 

56See, 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 sixmonth period). 

57See, e.g., Temporary Changes to Requirements 

Affecting H–2A Nonimmigrants Due to the COVID– 

19 National Emergency: Partial Extension of Certain 

Flexibilities, 85 FR 51304 (Aug. 20, 2020) 

(temporary final rule extending April 20, 2020 

temporary final rule); CDC, Temporary Halt in 

Residential Evictions To Prevent the Further Spread 

of COVID–19, 86 FR 34010 (July 01, 2021) 

(extension order). 

58 86 FR 11599. 

59HHS, Renewal of Determination that a Public 

Health Emergency Exists (July 19, 2021), https://

www.phe.gov/emergency/news/healthactions/phe/ 

Pages/COVID-19July2021.aspx; HHS, Renewal of 

Determination that a Public Health Emergency 

Exists (July 19, 2021); Notice on the Continuation 

of the National Emergency Concerning the 

Coronavirus Disease 2019 (COVID–19) Pandemic; 

Proclamation 9994 of March 13, 2020, Declaring a 

National Emergency Concerning the Coronavirus 

Disease (COVID–19) Outbreak. 

60WHO, WHO Coronavirus (COVID–19) 

Dashboard; WHO, Weekly Epidemiological Update. 

61WHO, WHO Coronavirus (COVID–19) 

Dashboard. 

62CDC, Variants of the Virus. 

63CDC, Variants of the Virus. 

64CDC, COVID Date Tracker. 

65CDC, Key Things to Know About COVID–19 

Vaccines. 

66CDC, MMWR. 

67 Id. 

68 Id. 

69CDC, COVID–19 Vaccine Breakthrough Case 

Investigation and Reporting. 

temporary final rule. Additionally, on 

multiple occasions, agencies have relied 

on this exception to promulgate both 

communicable disease-related 55 and 

immigration-related 56 interim rules, as 

well as extend such rules.57

DHS is publishing this second 

extension, with modification, as a 

temporary final rule because of the 

continuing COVID–19 crisis and 

incorporates into this extension with 

modification the discussion of good 

cause from the original and extension 

temporary rules. As discussed earlier in 

this preamble, on February 24, 2021, 

President Biden issued a notice on the 

continuation of the state of the National 

Emergency concerning the COVID–19 

pandemic.58 Effective July 20, 2021, the 

Secretary of Health and Human Services 

renewed the determination that ‘‘a 

public health emergency exists and has 

existed since January 27, 2020 

nationwide.’’ 59

As of September 9, 2021, there have 

been approximately 222,406,582 cases 

of COVID–19 identified globally, 

resulting in approximately 4,592,934 

deaths; approximately 40,152,521 cases 

have been identified in the United 

States, with about 1,297,399 new cases 

being identified in the 7 days preceding 

September 5th, and approximately 

646,131 reported deaths due to the 

disease.60 In the week preceding 

September 5th, the United States was 

the country that reported the highest 

number of new cases, with a 38 percent 

increase.61

Additionally, at least four notable 

variants of the virus that causes COVID– 

19 have been reported in the United 

States, including the now predominant 

Delta variant.62 Evidence suggests that 

these variants may spread faster and 

more easily than others and at least one 

variant may be associated with an 

increased risk of death.63 Although 

vaccines are now widely accessible, 

there is wide disparity in the 

percentages of vaccinated individuals 

by state,64 and experts still do not know 

the percentage needed to reach herd 

immunity, as well as how effective the 

vaccines are against new variants, and 

how long vaccines protect people.65

Ongoing research demonstrates that 

while there is high vaccine 

effectiveness, fully vaccinated 

individuals continue to experience 

breakthrough COVID–19 infections and 

may be either symptomatic or 

asymptomatic.66 As of April 30, 2021, 

10,262 SARS–CoV–2 breakthrough 

infections were reported from 46 U.S. 

states and territories.67 This data is 

limited, however, because most 

breakthrough infections are voluntarily 

reported, and on May 1, 2021, CDC 

began tracking breakthrough infections 

only where a patient is hospitalized or 

dies.68 As of August 30, 2021, CDC 

received reports from 49 U.S. states and 

territories of 12,908 patients with 

SARS–CoV–2 breakthrough infections 

who were hospitalized or died.69

The provision allowing an applicant 

for asylum, in USCIS’ discretion, to 

provide an interpreter when a USCIS 

interpreter is unavailable, is a measure 

that allows USCIS and the applicant for 

asylum to proceed with the interview 

under the same COVID–19 mitigation 

procedures that are employed when 

accommodating other participants in the 

asylum interview. As previously 

discussed in Section III of the preamble, 

the COVID–19 pandemic is a rapidly 

changing situation, and it is difficult to 

anticipate how the disruptions caused 

by the crisis will manifest themselves. 

Given the unique nature of the 

pandemic and the multiple challenges it 

has presented in the context of USCIS 

operations, the agency has had to 

modify its policies and procedures to 

adapt to the COVID–19 public health 

emergency. USCIS expects the provision 

to allow USCIS to address this rapidly 

changing situation caused by the 

COVID–19 pandemic with more 

flexibility to best respond to the 

continuing stream of new asylum 

applications and the need to adjudicate 

them promptly. As stated previously, 

competing demands in other caseloads, 

contractor availability, and an increased 

demand for certain languages, have 

impacted USCIS’ ability to consistently 

provide contract interpreters to 

applicants at the time of the interview. 

Throughout the COVID–19 pandemic, 

USCIS has continued to experience an 

increase in the affirmative caseload, 

which, in turn, has created challenges in 

accommodating the interpretation needs 

of asylum applicants. Surges in other 

case types have also required USCIS to 

divert contract interpreter resources 

away from affirmative asylum. These 

increases necessitate an immediate 

change to address a growing and more 

diverse population of applicants 

requesting asylum and needing 

interpreters. 

As discussed in Section III of the 

preamble, an applicant who either does 

not speak or elects to speak a language 

not on the GSA Schedule is required to 

bring his or her own interpreter to the 

interview who is fluent in English and 

the elected language not on the GSA 

Schedule. Allowing an asylum 

applicant, in USCIS’ discretion, to 

provide an interpreter when a USCIS 

interpreter is unavailable, is the 

equivalent to and is consistent with the 

practice of allowing an applicant to do 

the same when a USCIS interpreter is 

available. It is also unnecessary to seek 

comment on the change this temporary 

rule makes to now allow, in USCIS’ 

discretion, an asylum applicant to 

provide an interpreter when a USCIS 

interpreter is unavailable, because the 

obligation of the applicant will not have 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 51787 

70 DHS recognizes that the backlog has increased 

since the original temporary final rule was 

extended; however, if all applicants were required 

to bring their own interpreter as was done preCOVID–19, the interpreter would generally have to 

sit in a separate office during the interview to 

mitigate potential COVID–19 exposure, thereby 

reducing available office space to schedule 

additional interviews in a safe manner. This would 

likely increase the backlog at a faster rate than 

under this rule. 

changed, the applicant will benefit from 

being allowed to bring their own 

interpreter, and the applicant would be 

in the same position they would have 

been without this action. 

For the reasons stated, including the 

need to be responsive to the operational 

demands and challenges caused by the 

ongoing COVID–19 pandemic, DHS 

believes it has good cause to determine 

that ordinary notice and comment 

procedure is impracticable for this 

temporary action, including the 

modification, and that moving 

expeditiously to make this change is in 

the best interest of the public. 

Based on the continuing health 

emergency, DHS has renewed mask 

guidelines and other mitigation 

measures, and concluded that the good 

cause exceptions in 5 U.S.C. 553(b)(B) 

and (d)(3) apply to this temporary final 

rule extension with modification. 

Delaying implementation of this rule 

until the conclusion of notice-andcomment procedures and the 30-day 

delayed effective date would be 

impracticable and contrary to the public 

interest due to the need to continue 

agency operations, while continuing to 

mitigate the risks associated with the 

spread of COVID–19. Additionally, 

certain variables, including the 

reopening of schools, cold weather 

seasonal changes, and the annual 

influenza, are likely to cause an increase 

in infections. 

As of August 8, 2021, USCIS had 

406,801 asylum applications, on behalf 

of 638,893 noncitizens, pending final 

adjudication. Over 94 percent of these 

pending applications are awaiting an 

interview by an asylum officer. The 

USCIS backlog will continue to increase 

at a faster pace if USCIS is unable to 

safely and efficiently conduct asylum 

interviews.70

This temporary final rule extension 

with modification is promulgated as a 

response to COVID–19 and emerging 

variants. It is temporary, limited in 

application to only those asylum 

applicants who cannot proceed with the 

interview in English, and narrowly 

tailored to mitigate the spread of 

COVID–19. To not extend such a 

measure could cause serious and farreaching public safety and health 

effects. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act, 5 

U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, requires an agency 

to prepare and make available to the 

public a regulatory flexibility analysis 

that describes the effect of the rule on 

small entities (i.e., small businesses, 

small organizations, and small 

governmental jurisdictions). A 

regulatory flexibility analysis is not 

required when a rule is exempt from 

notice-and-comment rulemaking. 

C. Unfunded Mandates Reform Act of 

1995 

This temporary final rule extension 

with modification will not result in the 

expenditure by state, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

D. Congressional Review Act 

OMB’s Office of Information and 

Regulatory Affairs has determined that 

this action is not a major rule as defined 

by Subtitle E of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (also known as the Congressional 

Review Act). 5 U.S.C. 804(2). This rule 

will not result in an annual effect on the 

economy of $100 million or more; a 

major increase in costs or prices; or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. 

E. Executive Order 12866 Executive 

Order 13563 

Executive Orders (E.O.) 12866 and 

13563 direct agencies to assess the costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, reducing costs, 

harmonizing rules, and promoting 

flexibility. This rule is designated a 

significant regulatory action under E.O. 

12866. Accordingly, the Office of 

Management and Budget (OMB) has 

reviewed this regulation. DHS, however, 

is proceeding under the emergency 

provision of Executive Order 12866 

Section 6(a)(3)(D) based on the need to 

move expeditiously during the current 

public health emergency. 

This action will continue to help 

asylum applicants proceed with their 

interviews in a safe manner, while 

protecting agency staff. As a result of the 

first temporary rule extension, between 

March 10, 2021, and August 8, 2021, 

USCIS conducted 9,136 asylum 

interviews, with interpreters available 

telephonically. This second extension of 

the temporary rule with modification is 

not expected to result in any additional 

costs to the government. In addition, 

even with the provision that would 

permit, at USCIS’ discretion, an 

applicant for asylum to provide an 

interpreter when a contract interpreter 

is unavailable, there are no additional 

costs to the applicant relative to what 

would be the requirements if the earlier 

temporary final rule (TFR) were not 

extended. As discussed previously in 

Section III of the preamble, in those 

limited circumstances where a USCIS 

interpreter is unavailable and USCIS 

permits the applicant to provide their 

own interpreter, the interpreter will be 

required to follow USCIS COVID–19 

protocols in place at the time of the 

interview, including, but not limited to, 

sitting in a separate office. Following 

those COVID–19 protocols will not 

result in any additional costs for either 

the applicant or the interpreter. 

As previously explained, the contract 

interpreters will be provided at no cost 

to the applicant. USCIS already has an 

existing contract to provide telephonic 

interpretation and monitoring in 

interviews for all of its case types. 

USCIS has provided monitors for many 

years. Almost all interviews that utilize 

a USCIS provided interpreter after this 

rulemaking would have had a 

contracted monitor under the status 

quo. As the cost of monitoring and 

interpretation are identical under the 

contract and monitors will no longer be 

needed for these contract interpreter 

interviews, the extension of this portion 

of this rule is projected to be cost 

neutral or negligible as USCIS is already 

paying for these services even without 

this rule. 

USCIS anticipates that there would 

only be limited circumstances where a 

contract interpreter would be 

unavailable. As previously discussed in 

Section III of the preamble, in those 

limited circumstances where a contract 

interpreter is unavailable, USCIS will 

either reschedule the interview and 

attribute the interview delay to USCIS 

for the purposes of employment 

authorization pursuant to 8 CFR 208.7, 

or USCIS may, in its discretion, allow 

51788 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 

the applicant to provide an interpreter. 

In such cases, the applicant would be in 

the same position they would have been 

without this action. 

DHS recognizes there are both 

quantitative and qualitative benefits that 

could be realized by providing an 

applicant for asylum the opportunity to 

bring their own interpreter when a 

contract interpreter is unavailable, such 

as the costs avoided that would be 

incurred through rescheduling if a 

contract interpreter is unavailable—both 

for the applicant and USCIS, and the 

overall positive effect on applicants of 

having their asylum application timely 

adjudicated. Once this rule is no longer 

in effect, asylum applicants unable to 

proceed with an interview before a 

USCIS asylum officer in English will 

again be required to provide their own 

interpreters under 8 CFR 208.9(g). 

F. Executive Order 13132 (Federalism) 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

rule does not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. 

G. Executive Order 12988 (Civil Justice 

Reform) 

This rule meets the applicable 

standards set forth in section 3(a) and 

3(b)(2) of Executive Order 12988. 

H. Paperwork Reduction Act 

This rule does not propose new, or 

revisions to existing, ‘‘collection[s] of 

information’’ as that term is defined 

under the Paperwork Reduction Act of 

1995, Public Law 104–13, 44 U.S.C. 

chapter 35, and its implementing 

regulations, 5 CFR part 1320. As this 

action would only span 180 days, 

USCIS does not anticipate a need to 

update the Form I–589, Application for 

Asylum and for Withholding of 

Removal, despite the existing language 

on the form instructions regarding 

interpreters, because it will be primarily 

rescheduling interviews that were 

cancelled due to COVID–19. USCIS will 

post updates on its I–589 website, 

https://www.uscis.gov/i-589, and other 

asylum and relevant web pages 

regarding the new interview 

requirements in this regulation, as well 

as provide personal notice to applicants 

via the interview notices issued to 

applicants prior to their interview. 

List of Subjects in 8 CFR Part 208 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

Accordingly, for the reasons set forth 

in the preamble, the Secretary of 

Homeland Security amends 8 CFR part 

208 as follows: 

PART 208—PROCEDURES FOR 

ASYLUM AND WITHHOLDING OF 

REMOVAL 

■ 1. The authority citation for part 208 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1158, 

1226, 1252, 1282; Title VII of Pub. L. 110– 

229; 8 CFR part 2; Pub. L. 115–218. 

■ 2. Effective from September 20, 2021, 

through March 16, 2022, amend § 208.9 

by revising paragraphs (h) introductory 

text and (h)(1)(i) to read as follows: 

§ 208.9 Procedure for interview before an 

asylum officer. 

* * * * * 

(h) Asylum applicant interpreters. For 

asylum interviews conducted between 

September 21, 2021, through March 16, 

2022: 

(1) * * * 

(i) If a USCIS interpreter is 

unavailable, USCIS will either 

reschedule the interview and attribute 

the interview delay to USCIS for the 

purposes of employment authorization 

pursuant to § 208.7, or USCIS may, in its 

discretion, allow the applicant to 

provide an interpreter. 

* * * * * 

Alejandro Mayorkas, 

Secretary, U.S. Department of Homeland 

Security. 

[FR Doc. 2021–20161 Filed 9–16–21; 8:45 am] 

BILLING CODE 9111–97–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2021–0263; Project 

Identifier AD–2020–01702–T; Amendment 

39–21710; AD 2021–18–09] 

RIN 2120–AA64 

Airworthiness Directives; The Boeing 

Company Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: The FAA is adopting a new 

airworthiness directive (AD) for all The 

Boeing Company Model 777 airplanes. 

This AD was prompted by a report that 

an operator found solid rivets with 

missing heads at the left buttock line 25 

on the sloping pressure deck web. This 

AD requires doing a detailed inspection 

of the left- and right-side sloping 

pressure deck at certain stations for any 

damaged solid rivets, and applicable oncondition actions. The FAA is issuing 

this AD to address the unsafe condition 

on these products. 

DATES: This AD is effective October 22, 

2021. 

The Director of the Federal Register 

approved the incorporation by reference 

of a certain publication listed in this AD 

as of October 22, 2021. 

ADDRESSES: For service information 

identified in this final rule, contact 

Boeing Commercial Airplanes, 

Attention: Contractual & Data Services 

(C&DS), 2600 Westminster Blvd., MC 

110–SK57, Seal Beach, CA 90740–5600; 

telephone 562–797–1717; internet 

https://www.myboeingfleet.com. You 

may view this service information at the 

FAA, Airworthiness Products Section, 

Operational Safety Branch, 2200 South 

216th St., Des Moines, WA. For 

information on the availability of this 

material at the FAA, call 206–231–3195. 

It is also available at https://

www.regulations.gov by searching for 

and locating Docket No. FAA–2021– 

0263. 

Examining the AD Docket 

You may examine the AD docket at 

https://www.regulations.gov by 

searching for and locating Docket No. 

FAA–2021–0263; or in person at Docket 

Operations between 9 a.m. and 5 p.m., 

Monday through Friday, except Federal 

holidays. The AD docket contains this 

final rule, any comments received, and 

other information. The address for 

Docket Operations is U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE, 

Washington, DC 20590. 

FOR FURTHER INFORMATION CONTACT: Luis 

Cortez, Aerospace Engineer, Airframe 

Section, FAA, Seattle ACO Branch, 2200 

South 216th St., Des Moines, WA 98198; 

phone and fax: (206) 231–3958; email: 

Luis.A.Cortez-Muniz@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The FAA issued a notice of proposed 

rulemaking (NPRM) to amend 14 CFR 

part 39 by adding an AD that would 

apply to all The Boeing Company Model 

777 airplanes. The NPRM published in 

the Federal Register on April 9, 2021 

(86 FR 18479). The NPRM was