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Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations
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 COVID19 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 COVID19
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
55 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..
56 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 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. 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 30day or annual re-registration interviews over a sixmonth period.
57 See, e.g., Temporary Changes to Requirements Affecting H2A 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 COVID19, 86 FR 34010 July 01, 2021
extension order.
58 86 FR 11599.
59 HHS, 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 COVID19 Pandemic;
Proclamation 9994 of March 13, 2020, Declaring a
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As of September 9, 2021, there have been approximately 222,406,582 cases of COVID19 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 COVID19 infections and may be either symptomatic or asymptomatic.66 As of April 30, 2021, 10,262 SARSCoV2 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 SARSCoV2 breakthrough infections who were hospitalized or died.69
The provision allowing an applicant for asylum, in USCIS discretion, to National Emergency Concerning the Coronavirus Disease COVID19 Outbreak.
60 WHO, WHO Coronavirus COVID19
Dashboard; WHO, Weekly Epidemiological Update.
61 WHO, WHO Coronavirus COVID19
Dashboard.
62 CDC, Variants of the Virus.
63 CDC, Variants of the Virus.
64 CDC, COVID Date Tracker.
65 CDC, Key Things to Know About COVID19
Vaccines.
66 CDC, MMWR.
67 Id.
68 Id.
69 CDC, COVID19 Vaccine Breakthrough Case Investigation and Reporting.

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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 COVID19 mitigation procedures that are employed when accommodating other participants in the asylum interview. As previously discussed in Section III of the preamble, the COVID19 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 COVID19 public health emergency. USCIS expects the provision to allow USCIS to address this rapidly changing situation caused by the COVID19 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 COVID19 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
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