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Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Rules and Regulations
of the public above the age of two;
limiting the number of employees and members of the public in the office;
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. Other mitigation efforts, such as mandatory temperature screening for visitors and voluntary checks for employees, were implemented in January 2021.
DHS implemented a temporary rule on September 23, 2020 in order to reduce visitors to asylum offices in support of the overall COVID19
mitigation strategies described above.
Between September 23, 2020 and March 10, 2021, USCIS conducted 7,764
asylum interviews. That temporary rule, along with other noted public safety measures, have been effective in keeping our workforce and the public safe. As of March 5, 2021, there have been 1,577 confirmed cases of COVID
19 exposure among USCIS employees and contractors. The USCIS exposure rate 5.6% remains below the national average 8.6%.
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, asylum applicants who are unable to proceed with the interview in English will ordinarily be required to proceed with government-provided telephonic contract interpreters so long as they 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 a language on the GSA Schedule or elects to speak a language that is not on the GSA Schedule, the applicant will be 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.
USCIS incorporates into this extension the justifications, as well as the discussion on the benefits of providing telephonic contract interpreters in reducing the risk of contracting COVID19 for applicants, attorneys, interpreters, and USCIS
employees from the original rule.

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III. Discussion of Regulatory Change: 8
CFR 208.9h 20
DHS has determined that there are reasonable grounds for regarding potential exposure to COVID19 as a public health concern and thus sufficient to continue to modify the interpreter requirement for asylum applicants to lower the number of inperson attendees at asylum interviews.
DHS will continue to require asylum applicants to proceed with the asylum interview using USCISs interpreter services for another 180 days following publication of this temporary final rule if they are fluent in one of the 47
languages discussed in the temporary rule at 85 FR at 59657.21 After the 180
days concludes, asylum applicants unable to proceed in English will again be required to provide their own interpreters under 8 CFR 208.9g.
DHS noted in the original temporary final rule that it would evaluate the public health concerns and resource allocation 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, and it continues to apply to all asylum interviews across the nation. USCIS has determined that an extension of 180
days is appropriate given that 1 the pandemic is ongoing; 22 2 there is much that remains unknown about the transmissibility, severity, and other features associated with COVID19; 3
mitigation is especially important before additional vaccines and treatments become widely available; and 4 several variants of the virus that causes COVID
19 are circulating in the US. Health experts are still learning how easily these variants can be transmitted and 20 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
208.9g, with 8 CFR 1208.9g. 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 TFR, the revised language of 8 CFR
208.9h is binding on DHS and its adjudications for 180 days. DHS would not be bound by the DOJ
regulation at 8 CFR 1208.9g.
21 DHS notes that this extension does not modify 8 CFR 208.9g; 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 208.9h.
22 See 86 FR 11599; 85 FR 15337; HHS, Renewal of Determination that a Public Health Emergency exists.

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how effectively the currently authorized vaccines provide protection against the variants. Prior to the expiration of this extension to the temporary rule, DHS
will again evaluate the public health concerns and resource allocation 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 as a temporary final rule pursuant to the APAs good cause exception. 5 U.S.C.
553bB. 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. 553bB; see 5 U.S.C. 553d3.
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 below.
Additionally, on multiple occasions, agencies have relied on this exception to promulgate both communicable diseaserelated 23 and immigration-related 24
23 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..
24 See, e.g., Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended, 81 FR 5906, 5907
Feb. 4, 2016 interim rule citing good cause to immediately require a passport and visa from certain H2A 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. 2, 2003 interim rule
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