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Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations
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consular section waiting room could have an impact on U.S. relations with the host country, particularly if there were mitigating measures that could have been taken that were not.
Recognizing that the Departments continued ability to facilitate visa processing for applicants from any given country has a significant impact on that countrys bilateral relationship with the United States, this TFR clearly and directly impacts foreign affairs functions of the United States and implicates matters of diplomacy directly. City of N.Y. v. Permanent Mission of India to the U.N., 618 F.3d 172, 202 2d Cir.
2010. This TFR reflects changes to U.S.
foreign policy, specifically in the context of U.S. visas. In acknowledging its limited consular resources and local conditions, the Department noted that medical infrastructure, COVID19 cases, emergency response capabilities, and restrictions on leaving home may affect when, and the extent to which, Department facilities can begin to provide routine services. This TFR, by granting greater flexibility to accommodate the immigrant visa process in light of the dynamic conditions posed by the COVID19
pandemic, will allow the Department to better facilitate immigration of foreign nationals to the United States, a key foreign affairs function of the United States. This TFR, which temporarily provides flexibility to consular officers to issue immigrant visas under limited circumstances, directly relates to the Departments authority to carry out diplomatic duties and inherently involves the Secretary of States foreign affairs functions.
2. Statement of Department Procedure and Practice This TFR provides for a temporary change in the Departments procedures and practice regarding the adjudication of certain immigrant visa applications.
The APA provides that notice and comment is not required for interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice. 5
U.S.C. 553bA. Some individuals who have been issued immigrant visas did not use them for reasons related to the impact of the COVID19 pandemic, including personal choice, a lack of travel options, or official travel restrictions. Whether such individuals must appear in person to apply for a new immigrant visa or may proceed with the application steps without such an appearance is a matter of Department procedure and practice.
Courts have said that substantive rules create new law, rights, or duties
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or change existing rights and obligations, whereas procedural rules do not alter the rights or interests of parties but instead only the manner in which the parties present themselves or their viewpoints to the agency. Time Warner Cable Inc. v. FCC, 729 F.3d 137
2d Cir. 2013 emphasis added; see also Kaspar Wire Works, Inc. v. Secy of Labor, 268 F.3d 1123, 11311132 D.C.
Cir. 2001 finding even an agencys approach of imposing per-instance penalties to be a procedural agency housekeeping rule. Whether an applicant for an immigrant visa who had previously been issued a visa in the same classification, pursuant to the same approved petition or that was automatically converted to another classification due to the death or naturalization of the petitioner of the previously-granted immigrant visa must appear before a consular officer when re-applying does not alter a visa applicants rights or the duties of the Department, but merely the manner in which such applicants present themselves to the Department.
3. Good Cause To Forgo Notice and Comment Rulemaking The APA authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553bB. 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, the Department invokes that exception for this TFR, for the reasons set forth below.
As discussed earlier in this preamble, as many as 49,000 individuals who were issued an immigrant visa on or after August 4, 2019, may have been unable or unwilling to travel to the United States to seek admission as a lawful permanent resident due to extended travel restrictions and health conditions or concerns related to the COVID19
pandemic. Those restrictions derived from a series of Presidential Proclamations beginning in January 2020, the National Emergency declared in March 2020, and the Departments suspension of routine immigrant and nonimmigrant visa services at all U.S.
Embassies and Consulates in March 2020. To partially address the concerns of the risks of spreading the virus that
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causes COVID19 while simultaneously resuming consular operations to the greatest extent possible, the Department is acting expeditiously to put in place temporary flexibility to provide consular officers with discretion to waive the personal appearance and interview requirements for certain individuals who are submitting another application for an immigrant visa and to allow them to affirm the accuracy of the contents of the application under penalty of perjury rather than in person.
Consistent with the above analysis, notice and comment on this rulemaking would be impracticable and unnecessary. The TFR is narrowly construed to allow for the personal appearance and interview waiver of certain applicants who previously appeared and were issued a visa and who now seek to obtain a new visa to travel to the United States.
This TFR expires 24 months after its publication in the Federal Register.
This action is temporary in nature and includes appropriate conditions to ensure that it is narrowly tailored to the disruption in travel to the United States related to the COVID19 pandemic.
Considering the public health emergency caused by the spread of the virus associated with COVID19, delaying implementation of this rule until the conclusion of notice-andcomment procedures would be impracticable and contrary to the public interest due to the need to resume consular operations, and due to the associated COVID19 transmission risk to consular office staff as well as the public.
4. Good Cause To Proceed With an Immediate Effective Date The APA also authorizes agencies to make a rule effective immediately, upon a showing of good cause, instead of imposing a 30-day delay. 5 U.S.C.
553d3. There is a less restrictive standard for the good-cause exception to requirement for a 30-day delayed effective, than for forgoing notice and comment rulemaking due to good cause.
Riverbend Farms, Inc. v. Madigan, 958
F.2d 1479, 1485 9th Cir. 1992; Am.
Fedn of Govt Emps., AFLCIO v. Block, 655 F.2d 1153, 1156 D.C. Cir. 1981;
U.S. Steel Corp. v. EPA, 605 F.2d 283, 28990 7th Cir. 1979. An agency shows good cause for eliminating the 30-day delayed effective date when it demonstrates urgent conditions that the rule seeks to correct or unavoidable time limitations. U.S. Steel Corp., 605 F.2d at 290; United States v. Gavrilovic, 511
F.2d 1099, 1104 8th Cir. 1977. For the same reasons as set forth above, the Department also concludes that it has
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