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Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 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 applicants interpreter by following the same COVID19 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 COVID19 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 COVID19.49 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 rules modification to 8 CFR
208.9h1, giving USCIS discretion to allow asylum applicants to bring their own interpreter when a contract interpreter is unavailable will help advance the agencys 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 COVID19
guidelines, exceptions made to the government-contract interpreter requirement under this temporary final rule should not result in increased 48 See USCIS Response to COVID19: Asylum Appointments, available at https www.uscis.gov/
about-us/uscis-response-to-covid-19.
49 See USCIS Visitor Policy, available at https
www.uscis.gov/about-us/uscis-visitor-policy.

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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-COVID19 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 50 See 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.
51 See 86 FR 11599; 85 FR 15337; HHS, Renewal of Determination that a Public Health Emergency exists.

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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 SARSCoV2
infections; 53 and 4 certain variables, including the reopening of schools and cold weather seasonal changes, are likely to cause an increase in COVID19
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 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 in this 52 CDC, Delta Variant: What We Know About the Science.
53 CDC, MMWR; CDC, COVID Data Tracker COVID19 Vaccinations in the United States.
54 CDC, COVID19 Forecasts: Cases; NIH, The role of seasonality in the spread of COVID19
pandemic; Johns Hopkins Bloomberg School of Public Health, Will There be a Fall 2021 Resurgence of COVID19 in the U.S.? June 17, 2021, https
publichealth.jhu.edu/2021/will-there-be-a-fall-2021resurgence-of-covid-19-in-the-us.

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