Unknown. Interim final rule with request for comments

6,034 words·~27 min read·/register/2021/12/28/2021-28016

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2021-12-28.xml --- 86 246 Tuesday, December 28, 2021 Contents Agriculture Agriculture Department See Animal and Plant Health Inspection Service See Food and Nutrition Service See Food Safety and Inspection Service See Forest Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 73720 2021-28155 Animal Animal and Plant Health Inspection Service NOTICES Addition of the Dominican Republic to the List of Regions Affected With African Swine Fever, 73720-73721 2021-28054 Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 73744 2021-28126 Census Bureau Census Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: United States Census—Age Search, 73729-73730 2021-28165 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare Program: Durable Medical Equipment, Prosthetics, Orthotics, and Supplies Policy Issues, and Level II of the Healthcare Common Procedure Coding System; etc., 73860-73911 2021-27763 NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 73785-73787 2021-28216 2021-28217 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: State Access and Visitation Grant Application, 73787-73788 2021-28060 Privacy Act; Matching Program, 73788-73789 2021-28211 Commerce Commerce Department See Census Bureau See Foreign-Trade Zones Board See International Trade Administration See National Oceanic and Atmospheric Administration Defense Department Defense Department See Engineers Corps Education Department Education Department NOTICES 2020/22 Beginning Postsecondary Students Field Test:

Correction, 73747 2021-28059 Agency Information Collection Activities; Proposals, Submissions, and Approvals: District Survey on Use of Funds Under Title II, Part A, 73746 2021-28106 State Charter School Facilities Incentive Grants Program, 73746-73747 2021-28123 Election Election Assistance Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Election Assistance Commission Progress Report, 73747-73748 2021-28199 Energy Department Energy Department See Federal Energy Regulatory Commission NOTICES Boundary Revision for the Argonne National Laboratory, 73748-73749 2021-28147 Importation or Exportation of Liquified Natural Gas or Electric Energy;

Applications, Authorizations, etc.: SociVolta, Inc., 73750 2021-28200 Meetings: Environmental Management Site-Specific Advisory Board, Hanford, 73749 2021-28198 President's Council of Advisors on Science and Technology, 73749-73750 2021-28208 Engineers Engineers Corps NOTICES Development of the National Levee Safety Program, 73744-73746 2021-28056 Environmental Protection Environmental Protection Agency PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations:

Failure To Attain the Primary 2010 One-Hour Sulfur Dioxide Standard for the St. Bernard Parish, LA Nonattainment Area, 73718-73719 2021-27934 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Program Information on Source Water Protection, 73759-73760 2021-28152 Certain New Chemicals: Receipt and Status Information for November 2021, 73760-73764 2021-28085 Extension of Toxics Release Inventory Reporting Requirements to Certain Contract Sterilization Facilities, 73764-73766 2021-28067 Meetings:

Biofuel Greenhouse Gas Modeling, 73756-73757 2021-28079 Multi-Agency Radiation Survey and Site Investigation Manual, Revision 2, 73757-73759 2021-28080 Executive Office Executive Office for Immigration Review RULES Security Bars and Processing; Delay of Effective Date, 73615-73618 2021-28016 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Engine Alliance Turbofan Engines, 73667-73670 2021-27981 Rolls-Royce Corp. (Type Certificate Previously Held by Allison Engine Co.

) Turboprop Engines, 73658-73660 2021-28136 The Boeing Company Airplanes, 73660-73667, 73670-73673 2021-27957 2021-27958 2021-28133 Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures: Miscellaneous Amendments, 73673-73676 2021-28026 2021-28028 PROPOSED RULES Airspace Designations and Reporting Points: Grove, OK; Class E Airspace, 73715-73716 2021-27939 Springfield, OH, 73717-73718 2021-27940 Airworthiness Directives: Airbus Helicopters (Type Certificate Previously Held by Eurocopter France) Helicopters, 73703-73706 2021-28132 Bell Textron Canada Limited Helicopters, 73708-73712 2021-28089 Pratt and Whitney Division Turbofan Engines, 73699-73702 2021-27840 Rolls-Royce Deutschland Ltd & Co KG (Type Certificate Previously Held by Rolls-Royce plc) Turbofan Engines, 73690-73694 2021-27980 The Boeing Company Airplanes, 73688-73690, 73694-73699, 73706-73708, 73712-73715 2021-27838 2021-27839 2021-27974 2021-28181 Federal Deposit Federal Deposit Insurance Corporation NOTICES Response to Exception Requests Pursuant to Recordkeeping for Timely Deposit Insurance Determination, 73766-73767 2021-28143 Federal Election Federal Election Commission RULES Civil Monetary Penalties Annual Inflation Adjustments, 73638-73641 2021-28075 NOTICES Privacy Act;

System of Records, 73767-73770 2021-28222 Federal Energy Federal Energy Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 73752-73754 2021-28206 Application: PacifiCorp, 73752 2021-28203 Combined Filings, 73751-73752, 73756 2021-28202 2021-28209 Environmental Assessments; Availability, etc.: Golden Pass LNG Terminal, LLC; Golden Pass LNG Export Variance Request, No. 15 Amendment Project, 73755-73756 2021-28210 Petition:

Liquids Shippers Group for Expedited Order Directing Compliance With Form No. 6 Reporting Requirements, 73750-73751 2021-28204 Preliminary Permit Application: PacifiCorp, 73754 2021-28207 Records Governing Off-the-Record Communications, 73754-73755 2021-28201 Federal Housing Finance Agency Federal Housing Finance Agency RULES 2022-2024 Single-Family and 2022 Multifamily Enterprise Housing Goals, 73641-73658 2021-28168 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 73770-73784 2021-28052 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control:

Acquisitions of Shares of a Bank or Bank Holding Company, 73784-73785 2021-28131 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 73784 2021-28194 2021-28195 Federal Transit Federal Transit Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 73841-73842 2021-28068 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: Foothill Yellow-Legged Frog; Threatened Status With Section 4(d) Rule for Two Distinct Population Segments and Endangered Status for Two Distinct Population Segments, 73914-73945 2021-27512 NOTICES Draft Screening Form and Draft Low-Effect Habitat Conservation Plan:

Permanente Site Operations and Maintenance, Santa Clara County, CA, 73796-73797 2021-28124 Incidental Take Permit Application and Proposed Habitat Conservation Plan: Indiana Crossroads Wind Farm, White County, IN; Categorical Exclusion, 73797-73799 2021-28223 Food and Drug Food and Drug Administration RULES Medical Devices: Anesthesiology Devices; Classification of the Retrograde Intubation Device, 73677-73678 2021-28166 NOTICES Canned Tuna Deviating From the Standard of Identity:

Temporary Marketing Permits, 73789-73790 2021-28164 Food and Nutrition Food and Nutrition Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Family Day Care Home Participation Study, 73724-73727 2021-28149 Food Safety Food Safety and Inspection Service NOTICES Eligibility of Lithuania to Export Egg Products to the United States, 73721-73724 2021-28119 Foreign Assets Foreign Assets Control Office NOTICES Sanctions Actions, 73842-73851 2021-28104 2021-28178 2021-28179 2021-28180 Foreign Trade Foreign-Trade Zones Board NOTICES Authorization of Production Activity:

CCZJV-GPX, Foreign-Trade Zone 171, Liberty County, TX, 73731 2021-28174 Proposed Production Activity: CGT U.S., Ltd. (Polyvinyl Chloride Coated Upholstery Fabric Cover Stock), New Braunfels, TX, 73730 2021-28192 CooperVision Manufacturing PR, LLC, Foreign-Trade Zone 7, Mayaguez, PR, 73730 2021-28169 Forest Forest Service NOTICES Proposed New Fee Sites, 73727-73729 2021-28137 2021-28138 2021-28139 2021-28140 2021-28141 2021-28142 General Services General Services Administration RULES Federal Travel Regulation:

Taxes on Relocation Expenses, Withholding Tax Allowance, and Relocation Income Tax Allowance Eligibility, 73678-73684 2021-27637 NOTICES Federal Management Regulation: Persons Who Are Nursing in Public Buildings, 73785 2021-28130 Health and Human Health and Human Services Department See Centers for Medicare & Medicaid Services See Children and Families Administration See Food and Drug Administration See National Institutes of Health Homeland Homeland Security Department See U.S.

Customs and Border Protection RULES Automation of CBP Form I-418 for Vessels, 73618-73631 2021-27571 Security Bars and Processing; Delay of Effective Date, 73615-73618 2021-28016 NOTICES Critical Infrastructure Partnership Advisory Council Membership, 73795 2021-28177 Indian Affairs Indian Affairs Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Tribal Colleges and Universities CARES Act and CRRSA Act Report, 73799-73800 2021-28113 Indian Gaming:

Approval of Tribal-State Class III Gaming Compact in the State of Washington, 73800 2021-28213 2021-28214 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See National Indian Gaming Commission International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews, 73734-73740 2021-28172 Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Activated Carbon From the People's Republic of China, 73731-73734 2021-28171 Ripe Olives From Spain, 73740-73741 2021-28173 International Trade Com International Trade Commission NOTICES Complaint:

Certain Automated Put Walls and Automated Storage and Retrieval Systems, Associated Vehicles, Associated Control Software, and Component Parts Thereof, 73803-73804 2021-28184 Certain Monomer-Dimer Hybrid Immunoconjugates, 73804-73805 2021-28114 Justice Department Justice Department See Executive Office for Immigration Review NOTICES Consent Decree: Clean Water Act, 73806 2021-28197 Proposed Consent Decree: Oil Pollution and Clean Water Acts, 73805-73806 2021-28092 National Endowment for the Arts National Endowment for the Arts NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: 2022 Arts Supplement to the General Social Survey, 73806-73807 2021-28170 National Foundation National Foundation on the Arts and the Humanities See National Endowment for the Arts National Indian National Indian Gaming Commission NOTICES Approved Class III Tribal Gaming Ordinances, 73800-73803 2021-28190 National Institute National Institutes of Health NOTICES Meetings: National Center for Advancing Translational Sciences, 73793-73794 2021-28088 National Heart, Lung, and Blood Institute, 73794-73795 2021-28087 National Institute of Allergy and Infectious Diseases, 73790-73791 2021-28150 National Institute of Diabetes and Digestive and Kidney Diseases, 73793 2021-28101 National Institute of General Medical Sciences, 73790-73791 2021-28093 2021-28096 2021-28103 National Institute on Aging, 73792, 73794-73795 2021-28091 2021-28098 2021-28099 2021-28100 National Institute on Drug Abuse, 73795 2021-28151 National Institutes of Diabetes and Digestive and Kidney Diseases, 73791-73792 2021-28097 Prospective Grant of Exclusive Patent License:

Griffithsin Compositions for Treatment and Prevention of Anti-Viral Infections, 73792-73793 2021-28196 National Oceanic National Oceanic and Atmospheric Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Capital Construction Fund Agreement, Certificate Family of Forms and Deposit/Withdrawal Report, 73742 2021-28189 Pacific Islands Region Permit Family of Forms, 73743-73744 2021-28167 Meetings: Council Coordination Committee, 73743 2021-28187 Nuclear Regulatory Nuclear Regulatory Commission RULES Access Authorization Fees, 73631-73638 2021-28116 PROPOSED RULES Access Authorization Fees, 73685-73687 2021-28117 NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: NRC Form 798, Request for a Medical Exception to the COVID-19 Vaccination Requirement, 73808-73809 2021-28145 Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations, 73815-73826 2021-27415 Exemption; Issuance: Southern Nuclear Operating Company, Inc., Vogtle Electric Generating Plant Units 3 and 4, 73809-73815 2021-28129 Meetings: Advisory Committee on Reactor Safeguards, 73807-73808 2021-28188 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances:

National Cancer Act of 1971; 50th Anniversary (Proc. 10325), 73591-73592 2021-28312 Trade: Harmonized Tariff Schedule, U.S.; Modifications (Proc. 10326), 73593-73599 2021-28334 EXECUTIVE ORDERS Government Agencies and Employees: Rates of Pay; Adjustments (EO 14061), 73601-73613 2021-28313 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Investors Exchange LLC, 73830-73831 2021-28109 Self-Regulatory Organizations;

Proposed Rule Changes: ICE Clear Europe Ltd., 73833-73838 2021-28110 2021-28111 Nasdaq BX, Inc, 73831-73833 2021-28108 New York Stock Exchange, LLC, 73829 2021-28127 NYSE Arca, Inc., 73826-73829 2021-28112 Small Business Small Business Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 73838-73839 2021-28081 Major Disaster Declaration: Kentucky, 73838 2021-28090 Surrender of License of Small Business Investment Company: Accretive Investors SBIC, LP, 73838 2021-28094 Edison Venture Fund IV SBIC, LP, 73838 2021-28095 Surrender of License of Small Business Investment Company:

BCA Mezzanine Fund II, L.P., 73838 2021-28102 Social Social Security Administration NOTICES Civil Monetary Penalty Inflation Adjustment, 73839-73840 2021-28144 State Department State Department NOTICES Culturally Significant Object Being Imported for Exhibition: A Marble Portrait of the Youthful Marcus Aurelius, 73840-73841 2021-28186 Jacques Louis David: Radical Draftsman, 73840 2021-28176 Poussin and the Dance, 73840 2021-28182 Surface Transportation Surface Transportation Board NOTICES Roster of Arbitrators:

Annual Update, 73841 2021-28153 Transportation Department Transportation Department See Federal Aviation Administration See Federal Transit Administration Treasury Treasury Department See Foreign Assets Control Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 73851-73856 2021-28120 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Multiple Alcohol and Tobacco Tax and Trade Bureau Information Collection Requests, 73856-73858 2021-28215 Solicitation of Proposal Information for Award of Public Contracts, 73851 2021-28221 Customs U.S.

Customs and Border Protection RULES Automation of CBP Form I-418 for Vessels, 73618-73631 2021-27571 Separate Parts In This Issue Part II Health and Human Services Department, Centers for Medicare & Medicaid Services, 73860-73911 2021-27763 Part III Interior Department, Fish and Wildlife Service, 73914-73945 2021-27512 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription. 86 246 Tuesday, December 28, 2021 Rules and Regulations DEPARTMENT OF HOMELAND SECURITY 8 CFR Part 208 [Docket No: USCIS 2020-0013] RIN 1615-AC57 DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Part 1208 [A.G.

Order No. 5283-2021] RIN 1125-AB08 Security Bars and Processing; Delay of Effective Date AGENCY: U.S. Citizenship and Immigration Services, Department of Homeland Security; Executive Office for Immigration Review, Department of Justice. ACTION: Interim final rule with request for comments. SUMMARY: On December 23, 2020, the Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) (collectively, “the Departments”) published a final rule (“Security Bars rule”), to clarify that the “danger to the security of the United States” standard in the statutory bar to eligibility for asylum and withholding of removal encompasses certain emergency public health concerns and to make certain other changes.

That rule was scheduled to take effect on January 22, 2021, but, as of January 21, 2021, the Departments delayed the rule's effective date for 60 days to March 22, 2021. The Departments subsequently further extended and delayed the rule's effective date to December 31, 2021. In this rule, the Departments are further extending and delaying the effective date of the Security Bars rule until December 31, 2022. The Departments are soliciting comments both on the extension until December 31, 2022, and whether the effective date of the Security Bars rule should be extended beyond that date.

DATES: *Effective date:* As of December 28, 2021, the effective date of the final rule published December 23, 2020, at 85 FR 84160, which was delayed January 25, 2021, at 86 FR 6847, and March 22, 2021, at 86 FR 15069, is further delayed until December 31, 2022. *Submission of public comments:* Comments must be submitted on or before February 28, 2022. ADDRESSES: You may submit comments on this rule, identified by DHS Docket No. USCIS 2020-0013, through the Federal eRulemaking Portal: *http://www.regulations.gov* .

Follow the website instructions for submitting comments. Comments submitted in a manner other than the one listed above, including emails or letters sent to the Departments' officials, will not be considered comments on the rule and may not receive a response from the Departments. Please note that the Departments cannot accept any comments that are hand-delivered or couriered. In addition, the Departments cannot accept comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives.

The Departments are not accepting mailed comments at this time. If you cannot submit your comment by using *http://www.regulations.gov,* please contact Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by telephone at

(240)721-3000 (not a toll-free call) for alternate instructions. FOR FURTHER INFORMATION CONTACT: *For USCIS:* Rená Cutlip-Mason, Chief, Division of Humanitarian Affairs, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20588-0009; telephone

(240)721-3000 (not a toll-free call). *For EOIR:* Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Falls Church, VA 22041; telephone

(703)305-0289 (not a toll-free call). SUPPLEMENTARY INFORMATION: I. Public Participation Interested persons are invited to submit comments on this action to further extend and delay the effective date of the Security Bars rule by submitting relevant written data, views, or arguments. To provide the most assistance to the Departments, comments should reference a specific portion of the rule; explain the reason for any recommendation; and include data, information, or authority that supports the recommended course of action. Comments must be submitted in English, or an English translation must be provided. Comments submitted in a manner other than those listed above, including emails or letters sent to the Departments' officials, will not be considered comments on the rule and may not receive a response from the Departments. *Instructions:* If you submit a comment, you must include the agency name and the DHS Docket No. USCIS 2020-0013 for this rulemaking. All submissions will be posted, without change, to the Federal eRulemaking Portal at *http://www.regulations.gov,* and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission you make to the Departments. The Departments may withhold information provided in comments from public viewing that they determine may impact the privacy of an individual or is offensive. For additional information, please read the Privacy and Security Notice available at *http://www.regulations.gov* . *Docket:* For access to the docket and to read background documents or comments received, go to *http://www.regulations.gov,* referencing DHS Docket No. USCIS 2020-0013. You may also sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published. II. Background and Basis for Delay of Effective Date A. Background On December 23, 2020, the Departments published the Security Bars rule to amend existing regulations to clarify that in certain circumstances there are “reasonable grounds for regarding [an] alien as a danger to the security of the United States” or “reasonable grounds to believe that [an] alien is a danger to the security of the United States” based on emergency public health concerns generated by a communicable disease, making the noncitizen ineligible to be granted asylum in the United States under section 208 of the Immigration and Nationality Act (“INA” or “the Act”), 8 U.S.C. 1158, or the protection of withholding of removal under the Act or subsequent regulations (because of the threat of torture). *Security Bars and Processing,* 85 FR 84160 (Dec. 23, 2020). The rule was scheduled to take effect on January 22, 2021. On January 20, 2021, the White House Chief of Staff issued a memorandum asking agencies to consider delaying, consistent with applicable law, the effective dates of any rules that had been published and not yet gone into effect, for the purpose of allowing the President's appointees and designees to review questions of fact, law, and policy raised by those regulations. *See* Memorandum for the Heads of Executive Departments and Agencies from Ronald A. Klain, Assistant to the President and Chief of Staff, *Re: Regulatory Freeze Pending Review* (Jan. 20, 2021), *available at* 86 FR 7424 (Jan. 28, 2021). As of January 21, 2021, the Departments delayed the effective date of the Security Bars rule to March 22, 2021, and then further delayed the effective date of the Security Bars rule to December 31, 2021, consistent with that memorandum and a preliminary injunction in place with respect to a related rule, as discussed below. *See* Security Bars and Processing; Delay of Effective Date, 86 FR 6847 (Jan. 25, 2021); Security Bars and Processing; Delay of Effective Date, 86 FR 15069 (Mar. 22, 2021). B. Reason for Delay As stated in the *Security Bars and Processing; Delay of Effective Date* interim final rule (“March Security Bars Delay IFR”) published on March 22, 2021, the Departments had good cause to delay the Security Bars rule's effective date further without advance notice and comment because implementation of the Security Bars rule was infeasible due to a preliminary injunction against a related rule. *See* 86 FR at 15070. Specifically, the Security Bars rule relies on revisions to the Departments' regulations previously made on December 11, 2020, by a separate joint rule, *Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review* (“Global Asylum final rule”). 1 The Global Asylum final rule was scheduled to become effective before the Security Bars rule. However, on January 8, 2021, 14 days prior to the effective date of the Security Bars rule, in the case of *Pangea Legal Services* v. *Department of Homeland Security (“Pangea II”),* a district court preliminarily enjoined the Departments “from implementing, enforcing, or applying the [Global Asylum final] rule . . . or any related policies or procedures.” 2 The preliminary injunction remains in place. Thus, implementation of the Security Bars rule continues to be infeasible. 1 *See* 85 FR 80274 (Dec. 11, 2020). 2 *Pangea Legal Servs.* v. *U.S. Dep't of Homeland Sec.,* 512 F. Supp. 3d 966, 977 (N.D. Cal. 2021). By issuing this rule to further extend and delay the effective date of the Security Bars rule, the Departments are not indicating a position on the outcome thus far in *Pangea II* . Specifically, the Security Bars rule relies upon the regulatory framework that was established in the Global Asylum final rule in applying bars to asylum eligibility and withholding of removal during credible fear screenings. 3 On July 9, 2020, the Departments published a Notice of Proposed Rulemaking for the Security Bars rule (“Security Bars NPRM”), which proposed regulatory text instructing adjudicators to apply the security bars to asylum eligibility and withholding of removal during credible fear screenings. 4 This proposal would have modified the then-existing regulatory framework instructing that evidence that the individual is, or may be, subject to a bar to asylum eligibility or withholding of removal, including the “danger to the security of the United States” bars underlying the Security Bars rule, does not have an impact on a credible fear determination. 5 The Security Bars NPRM justified this modification as necessary to allow DHS to quickly remove individuals covered by the security bars to asylum eligibility and withholding of removal, rather than sending potentially barred individuals to full removal proceedings pursuant to section 240 of the INA, 8 U.S.C. 1229a (“section 240 removal proceedings”), for consideration of further relief or protection from removal before an immigration judge, which can take months or even years. 6 The Security Bars NPRM further explained that applying the security bars during credible fear screenings was necessary to reduce health and safety dangers to both the public at large and DHS officials. 7 3 *See, e.g.,* 85 FR at 84176 (“As noted, the [Security Bars] final rule is not, as the NPRM proposed, modifying the regulatory framework to apply the danger to the security of the United States bars at the credible fear stage because, in the interim between the NPRM and the final rule, the [Global Asylum final rule] did so for all of the bars to eligibility for asylum and withholding of removal.”); *id.* at 84189 (describing changes made in the Security Bars rule “to certain regulatory provisions not addressed in the proposed rule as necessitated by the intervening promulgation of the [Global Asylum final] Rule”). 4 *Security Bars and Processing,* 85 FR 41201, 41216-18 (July 9, 2020). 5 *See id.* at 41207. 6 *Id.* at 41210-12. 7 *Id.* at 41210. On December 11, 2020, while the Departments were reviewing the comments submitted in response to the Security Bars NPRM, the Global Asylum final rule was published. 8 The Global Asylum final rule changed the general practice described above to apply all bars to asylum eligibility and withholding of removal during credible fear screenings. 9 Most relevant, the Global Asylum final rule changed the then-existing regulatory framework described above, in which evidence of a bar to asylum eligibility or withholding of removal does not have any impact on a credible fear determination (even though the bars would be part of the ultimate adjudication of asylum eligibility or withholding of removal before the Executive Office of Immigration Review), to a framework that instead required asylum officers to apply all of the bars to asylum eligibility or withholding of removal during credible fear screenings. 10 8 85 FR 80274 (Dec. 11, 2020). 9 *Id.* at 80391. 10 *Id.* On December 23, 2020, the Security Bars rule was published. In this final rule, the Departments revised the text from the Security Bars NPRM to explicitly rely on the intervening changes made by the Global Asylum final rule. 11 As a result, the regulatory text of significant portions of the Security Bars rule relies upon and repeats broader regulatory text established by the Global Asylum final rule, such as applying bars to asylum eligibility and withholding of removal during credible fear screenings. 12 The Security Bars rule assumed that the Global Asylum final rule would be in effect, and, therefore, the Security Bars rule did not make additional changes to the credible fear framework. 13 11 85 FR at 84174-77. 12 *See, e.g., id.* at 84194-98 (revising 8 CFR 208.30, 235.6, 1208.30, and 1235.6, among other provisions); *accord* 85 FR at 80390-80401 (same). 13 *See* 85 FR at 84175 (“The Departments note that the final rule is not, as the NPRM proposed, modifying the regulatory framework to apply the danger to the security of the United States bars at the credible fear stage. In the interim between the NPRM and the final rule, the Global Asylum final rule did so for bars to eligibility for asylum and withholding of removal.”). As a result of the interplay between the two rules, implementation of the Security Bars rule would risk violating the injunction against the application, implementation, or enforcement of the Global Asylum final rule and any related policies or procedures. Effective implementation of the Security Bars rule relies on the application of the asylum and withholding of removal bars to eligibility at the credible fear screening stage, as established by the Global Asylum final rule. 14 Accordingly, implementing the Security Bars rule—and effectively reinserting or relying upon regulatory provisions that the *Pangea II* court has enjoined—may potentially violate the court's injunction. In other words, the court's injunction in *Pangea II* makes it impermissible under the current regulatory framework to apply the bars to asylum eligibility and withholding of removal outlined in the Security Bars rule to noncitizens in the credible fear screening process. Given these circumstances, the Departments believe that the Security Bars rule, which could not be implemented as designed, would not necessarily provide the framework for achieving its intended goals. 14 As the Departments explained in the Security Bars rule, the intervening Global Asylum final rule made changes to the credible fear screening framework to provide that noncitizens receiving positive credible fear determinations be placed in asylum-and-withholding only proceedings, rather than section 240 removal proceedings. *See* 85 FR at 84188. The Security Bars rule relied upon this change made in the Global Asylum final rule to provide that noncitizens who receive positive credible fear determinations under the Security Bars rule will be placed in such asylum-and-withholding only proceedings rather than section 240 removal proceedings, unless they are removed to third countries. *See id.* The Security Bars rule also assumes that the Departments are using the reasonable possibility of persecution or torture standards for withholding of removal claims in the credible fear screening context, which is also a change that was made in the Global Asylum final rule. *See id.* at 84188, 84191. Accordingly, the Departments are further extending and delaying the effective date of the Security Bars rule until December 31, 2022, because of the aforementioned litigation. If the injunction against implementation of the Global Asylum final rule is lifted before December 31, 2022, the Departments can revise the effective date of the Security Bars rule as needed to account for this change. Similarly, if the injunction remains in effect on that date, the Departments may delay the effective date of the Security Bars rule further. The Departments have chosen this time-limited delay, rather than an indefinite delay, due to the preliminary nature of the injunction. C. Future Rulemaking To Modify or Rescind Security Bars Rule The Departments are reviewing and reconsidering the Security Bars rule in light of the Administration's policies of ensuring the safe and orderly reception and processing of asylum seekers consistent with public health and safety, strengthening the asylum system, and removing barriers that impede access to immigration benefits, with the additional context of the complex relationship between the Global Asylum final rule and the Security Bars rule, and the court's injunction in *Pangea II* . 15 The Departments are reevaluating whether the Security Bars rule provides the most appropriate and effective framework for achieving its goals of mitigating the spread of communicable diseases, including COVID-19, among certain noncitizens in the credible fear screening process, as well as DHS personnel and the public. The Departments plan to publish a separate NPRM to solicit public comments on whether to modify or rescind the Security Bars rule. 16 15 *See, e.g.,* Executive Order 14010 of February 2, 2021, *Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border,* 86 FR 8267 (Feb. 5, 2021); Executive Order 14012 of February 2, 2021, *Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,* 86 FR 8277 (Feb. 5, 2021). 16 *See* Executive Office of the President, Office of Management and Budget, Office of Information and Regulatory Affairs, *Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions, Bars to Asylum Eligibility and Procedures, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202104&RIN=1615-AC69* (last visited Dec. 14, 2021). In the March Security Bars Delay IFR, the Departments explained that they were considering amending or rescinding the Security Bars rule and noted that they may extend the delay in its effective date beyond December 31, 2021, if the injunction remained in effect at the time. 86 FR at 15071. The Departments sought public comments on whether the Security Bars rule should be revised or revoked and information on alternative approaches that may achieve the best public health outcome consistent with the Administration's immigration policy goals. 17 The Departments received 66 comments in response to the March Security Bars Delay IFR, which the Departments would address in any separate future rulemaking to modify or rescind the Security Bars rule. 17 *See* 86 FR at 15069, 15071. The Departments recognize that the COVID-19 public health emergency is highly dynamic and continues to pose health and safety risks for noncitizens held in congregate settings, particularly at holding and detention facilities, agency personnel, and the public. 18 As the COVID-19 public health emergency has continued to evolve, the Departments continue to reconsider and reevaluate how best to mitigate the spread of COVID-19 and which actions are most appropriate in accordance with their legal authorities. 18 *See Public Health Reassessment and Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists,* 86 FR 42828, 42830, 42833, 42835-36 (Aug. 5, 2021). III. Request for Comment on Further Delay of the Effective Date of the Security Bars Rule The Departments continue to welcome data, views, and information regarding the effective date of the Security Bars rule. The Departments also are soliciting comments on whether the effective date should be extended beyond December 31, 2022, if the *Pangea II* injunction is still in effect or if other intervening events occur. IV. Regulatory Requirements A. Administrative Procedure Act Under the Administrative Procedure Act (“APA”), agencies are not required to engage in pre-promulgation notice-and-comment under 5 U.S.C. 553(b) and

(c)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. 553(b)(B). As stated above, the Departments have determined that the good cause exception applies to this rule because implementation of the Security Bars rule has not been—and continues to not be—feasible due to a preliminary injunction against a related rule. As explained above, the Security Bars rule's reliance upon—and interplay with—the Global Asylum final rule means that implementation of the Security Bars rule would risk violating the *Pangea II* injunction. The preliminary injunction remains in place. It is therefore impractical and unnecessary for the Departments to provide notice and an opportunity to comment, because any comments received cannot and will not affect the injunction underlying the need for delay. *See EME Homer City Generation, L.P.* v. *E.P.A.,* 795 F.3d 118, 134-35 (D.C. Cir. 2015) (explaining that the good cause exception applied because “commentators could not have said anything during a notice and comment period that would have changed” the agency's response to a judicial decision). The Departments notified the public in March that “if the injunction remains in effect on December 31, [2021,] the Departments may delay the effective date of the Security Bars rule further.” 86 FR at 15071. 19 19 In response to the March Security Bars Delay IFR, the Departments received one comment objecting to a further delay. The commenter asserted that implementation was needed to mitigate the risk of the potential spread of deadly communicable diseases by noncitizens from countries where the disease was prevalent. As noted, however, agencies have been enjoined from applying bars to asylum eligibility and withholding of removal when making a credible fear determination. B. Executive Order 12866 and Executive Order 13563 Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs, benefits, and transfers of available 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. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Pursuant to Executive Order 12866, the Office of Information and Regulatory Affairs of the Office of Management and Budget determined that this rule is “significant” under Executive Order 12866 and has reviewed this regulation. C. Regulatory Flexibility Act The Departments have reviewed this rule in accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 *et seq.,* and have determined that this rule to further delay the effective date of the Security Bars rule (85 FR 84160) will not have a significant economic impact on a substantial number of small entities. Neither the Security Bars rule, nor this rule to delay its effective date, regulate “small entities” as that term is defined in 5 U.S.C. 601(6). Only individuals, rather than entities, are eligible to apply for asylum and related forms of relief, and only individuals are placed in immigration proceedings. D. Unfunded Mandates Reform Act of 1995 This rule 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 are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. E. Congressional Review Act This rule is not a major rule as defined by section 804 of the Congressional Review Act (“CRA”). 5 U.S.C. 804. 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 foreign based enterprises in domestic and export markets. The Departments have complied with the CRA's reporting requirements and have sent this rule to Congress and to the Comptroller General as required by 5 U.S.C. 801(a)(1). F. Executive Order 13132 (Federalism) This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, the Departments believe that this rule will not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. G. Executive Order 12988 (Civil Justice Reform) This rule meets the applicable standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988. H. Paperwork Reduction Act This rule does not create new, or revisions to existing, “collection[s] of information” as that term is defined under the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320. I. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) This rule does not have “tribal implications” because it does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Accordingly, Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) requires no further agency action or analysis. Alejandro N. Mayorkas, Secretary, U.S. Department of Homeland Security. Dated: December 18, 2021. Merrick B. Garland, Attorney General, Department of Justice. [FR Doc. 2021-28016 Filed 12-27-21; 8:45 am]

Connectionstraces to 13

Traces to 13 documents

U.S. Code