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Federal Register / Vol. 86, No. 246 / Tuesday, December 28, 2021 / Rules and Regulations
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As a result of the interplay between the two rules, implementation of the Security Bars rule would risk violating the injunction against the application, implementation, or enforcement of the Global Asylum final rule and any related policies or procedures. Effective implementation of the Security Bars rule relies on the application of the asylum and withholding of removal bars to eligibility at the credible fear screening stage, as established by the Global Asylum final rule.14
Accordingly, implementing the Security Bars ruleand effectively reinserting or relying upon regulatory provisions that the Pangea II court has enjoinedmay potentially violate the courts injunction. In other words, the courts injunction in Pangea II makes it impermissible under the current regulatory framework to apply the bars to asylum eligibility and withholding of removal outlined in the Security Bars rule to noncitizens in the credible fear screening process. Given these circumstances, the Departments believe that the Security Bars rule, which could not be implemented as designed, would not necessarily provide the framework for achieving its intended goals.
Accordingly, the Departments are further extending and delaying the effective date of the Security Bars rule until December 31, 2022, because of the aforementioned litigation. If the injunction against implementation of the Global Asylum final rule is lifted before December 31, 2022, the Departments can revise the effective date of the Security Bars rule as needed to account for this change. Similarly, if the injunction remains in effect on that date, the Departments may delay the effective date of the Security Bars rule further. The Departments have chosen this time-limited delay, rather than an the credible fear stage. In the interim between the NPRM and the final rule, the Global Asylum final rule did so for bars to eligibility for asylum and withholding of removal..
14 As the Departments explained in the Security Bars rule, the intervening Global Asylum final rule made changes to the credible fear screening framework to provide that noncitizens receiving positive credible fear determinations be placed in asylum-and-withholding only proceedings, rather than section 240 removal proceedings. See 85 FR
at 84188. The Security Bars rule relied upon this change made in the Global Asylum final rule to provide that noncitizens who receive positive credible fear determinations under the Security Bars rule will be placed in such asylum-andwithholding only proceedings rather than section 240 removal proceedings, unless they are removed to third countries. See id. The Security Bars rule also assumes that the Departments are using the reasonable possibility of persecution or torture standards for withholding of removal claims in the credible fear screening context, which is also a change that was made in the Global Asylum final rule. See id. at 84188, 84191.

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indefinite delay, due to the preliminary nature of the injunction.
C. Future Rulemaking To Modify or Rescind Security Bars Rule The Departments are reviewing and reconsidering the Security Bars rule in light of the Administrations policies of ensuring the safe and orderly reception and processing of asylum seekers consistent with public health and safety, strengthening the asylum system, and removing barriers that impede access to immigration benefits, with the additional context of the complex relationship between the Global Asylum final rule and the Security Bars rule, and the courts injunction in Pangea II.15 The Departments are reevaluating whether the Security Bars rule provides the most appropriate and effective framework for achieving its goals of mitigating the spread of communicable diseases, including COVID19, among certain noncitizens in the credible fear screening process, as well as DHS
personnel and the public. The Departments plan to publish a separate NPRM to solicit public comments on whether to modify or rescind the Security Bars rule.16
In the March Security Bars Delay IFR, the Departments explained that they were considering amending or rescinding the Security Bars rule and noted that they may extend the delay in its effective date beyond December 31, 2021, if the injunction remained in effect at the time. 86 FR at 15071. The Departments sought public comments on whether the Security Bars rule should be revised or revoked and information on alternative approaches that may achieve the best public health outcome consistent with the Administrations immigration policy goals.17 The Departments received 66
comments in response to the March Security Bars Delay IFR, which the Departments would address in any 15 See, e.g., Executive Order 14010 of February 2, 2021, Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border, 86 FR 8267 Feb. 5, 2021; Executive Order 14012 of February 2, 2021, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, 86 FR 8277 Feb. 5, 2021.
16 See Executive Office of the President, Office of Management and Budget, Office of Information and Regulatory Affairs, Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions, Bars to Asylum Eligibility and Procedures, https
www.reginfo.gov/public/do/eAgendaViewRule?
pubId=202104&RIN=1615-AC69 last visited Dec.
14, 2021.
17 See 86 FR at 15069, 15071.

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separate future rulemaking to modify or rescind the Security Bars rule.
The Departments recognize that the COVID19 public health emergency is highly dynamic and continues to pose health and safety risks for noncitizens held in congregate settings, particularly at holding and detention facilities, agency personnel, and the public.18 As the COVID19 public health emergency has continued to evolve, the Departments continue to reconsider and reevaluate how best to mitigate the spread of COVID19 and which actions are most appropriate in accordance with their legal authorities.
III. Request for Comment on Further Delay of the Effective Date of the Security Bars Rule The Departments continue to welcome data, views, and information regarding the effective date of the Security Bars rule. The Departments also are soliciting comments on whether the effective date should be extended beyond December 31, 2022, if the Pangea II injunction is still in effect or if other intervening events occur.
IV. Regulatory Requirements A. Administrative Procedure Act Under the Administrative Procedure Act APA, agencies are not required to engage in pre-promulgation noticeand-comment under 5 U.S.C. 553b and c when an agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553bB. As stated above, the Departments have determined that the good cause exception applies to this rule because implementation of the Security Bars rule has not beenand continues to not befeasible due to a preliminary injunction against a related rule. As explained above, the Security Bars rules reliance uponand interplay withthe Global Asylum final rule means that implementation of the Security Bars rule would risk violating the Pangea II injunction. The preliminary injunction remains in place.
It is therefore impractical and unnecessary for the Departments to provide notice and an opportunity to comment, because any comments received cannot and will not affect the injunction underlying the need for delay. See EME Homer City Generation, L.P. v. E.P.A., 795 F.3d 118, 13435
18 See Public Health Reassessment and Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists, 86 FR 42828, 42830, 42833, 4283536 Aug. 5, 2021.

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