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Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations 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 COVID19 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. 553bB
and d3 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 COVID19. 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 COVID19 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 COVID19. To not extend such a measure could cause serious and farreaching public safety and health effects.
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 preCOVID19, the interpreter would generally have to sit in a separate office during the interview to mitigate potential COVID19 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.

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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 OMBs 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. 8042. 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
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provision of Executive Order 12866
Section 6a3D 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 COVID19
protocols in place at the time of the interview, including, but not limited to, sitting in a separate office. Following those COVID19 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
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