Notice2021-15699
Public Health Determination Regarding an Exception for Unaccompanied Noncitizen Children From the Order Suspending the Right To Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 22, 2021
Effective
July 16, 2021
Issuing agencies
Health and Human Services DepartmentCenters for Disease Control and Prevention
Abstract
The Centers for Disease Control and Prevention (CDC), a component of the Department of Health and Human Services (HHS), announces an Order excepting unaccompanied noncitizen children (UC) from the Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists, issued on October 13, 2020 (October Order). CDC finds that, at this time, there is appropriate infrastructure in place to protect the children, caregivers, and local communities from elevated risk of COVID-19 transmission as a result of the introduction of UC, and U.S. healthcare resources are not significantly impacted by providing UC necessary care. CDC believes the COVID-19-related public health concerns associated with UC introduction can be adequately addressed without the UC being subject to the October Order, thereby permitting the government to better address the humanitarian challenges for these children. Therefore, CDC is fully excepting UC from the October Order, and the Notice regarding the temporary exception of UC published February 17, 2021 is hereby superseded.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 138 (Thursday, July 22, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 138 (Thursday, July 22, 2021)]
[Notices]
[Pages 38717-38720]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-15699]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Disease Control and Prevention
Public Health Determination Regarding an Exception for
Unaccompanied Noncitizen Children From the Order Suspending the Right
To Introduce Certain Persons From Countries Where a Quarantinable
Communicable Disease Exists
AGENCY: Centers for Disease Control and Prevention (CDC), Department of
Health and Human Services (HHS).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Centers for Disease Control and Prevention (CDC), a
component of the Department of Health and Human Services (HHS),
announces an Order excepting unaccompanied noncitizen children (UC)
from the Order Suspending the Right to Introduce Certain Persons from
Countries Where a Quarantinable Communicable Disease Exists, issued on
October 13, 2020 (October Order). CDC finds that, at this time, there
is appropriate infrastructure in place to protect the children,
caregivers, and local communities from elevated risk of COVID-19
transmission as a result of the introduction of UC, and U.S. healthcare
resources are not significantly impacted by providing UC necessary
care. CDC believes the COVID-19-related public health concerns
associated with UC introduction can be adequately addressed without the
UC being subject to the October Order, thereby permitting the
government to better address the humanitarian challenges for these
children. Therefore, CDC is fully excepting UC from the October Order,
and the Notice regarding the temporary exception of UC published
February 17, 2021 is hereby superseded.
DATES: This Order went into effect July 16, 2021.
FOR FURTHER INFORMATION CONTACT: Tiffany Brown, Deputy Chief of Staff,
Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS
H21-10, Atlanta, GA 30329. Phone: 404-639-7000. Email:
<a href="/cdn-cgi/l/email-protection#9af9fef9e8fffdeff6fbeef3f5f4e9daf9fef9b4fdf5ec"><span class="__cf_email__" data-cfemail="76151215041311031a17021f1918053615121558111900">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: As part of government efforts to mitigate
the introduction, transmission, and spread of COVID-19, CDC issued the
October Order,\1\ suspending the right to
[[Page 38718]]
introduce certain persons into the United States (U.S.) from countries
or places where a quarantinable communicable disease exists to protect
the public's health from an increase in risk of the introduction of
COVID-19. The Order applied specifically to certain noncitizens as
defined \2\ who would otherwise be introduced into a congregate setting
in land or coastal ports of entry (POE) or Border Patrol stations at or
near the U.S. borders with Canada and Mexico. On February 17, 2021,\3\
CDC published a notice announcing the temporary exception from
expulsion of unaccompanied noncitizen children \4\ (UC) encountered in
the United States from the October Order.\5\
---------------------------------------------------------------------------
\1\ Order Suspending the Right to Introduce Certain Persons from
Countries Where a Quarantinable Communicable Disease Exists, 85 FR
65806 (Oct. 16, 2020). The October Order replaced the Order
Suspending Introduction of Certain Persons from Countries Where a
Communicable Disease Exists, issued on March 20, 2020. 85 FR 17060
(Mar. 26, 2020); Extension of Order Under Sections 362 and 365 of
the Public Health Service Act; Order Suspending Introduction of
Certain Persons From Countries Where a Communicable Disease Exists,
85 FR 22424 (Apr. 22, 2020); Amendment and Extension of Order Under
Sections 362 and 365 of the Public Health Service Act; Order
Suspending Introduction of Certain Persons from Countries Where a
Communicable Disease Exists, 85 FR 31503 (May 26, 2020).
\2\ See 85 FR 65806, 65807.
\3\ Notice of Temporary Exception from Expulsion of
Unaccompanied Noncitizen Children Encountered in the United States
Pending Forthcoming Public Health Determination, 86 FR 9942 (Feb.
17, 2021).
\4\ CDC's understanding is that this class of individuals is
similar to or the same as those individuals who would be considered
``unaccompanied alien children'' (see 6 U.S.C. 279) for purposes of
HHS ORR custody, were DHS to make the necessary immigration
determinations under Title 8 of the U.S. Code.
\5\ Notice of Temporary Exception from Expulsion of
Unaccompanied Noncitizen Children Encountered in the United States
Pending Forthcoming Public Health Determination, 86 FR 9942 (Feb.
17, 2021).
---------------------------------------------------------------------------
As detailed in the Order, CDC has reviewed the current situation
with regards to the COVID-19 public health emergency and UC in
immigrations facilities and has concluded that it is appropriate to
fully except UC from the October Order given the measures in place to
prevent and mitigate transmission of COVID-19 in this population. CDC
finds that the robust network UC care facilities operated by the Office
of Refugee Resettlement (ORR), a component of HHS, the testing and
medical care available therein, as well as COVID-19 mitigation
protocols including vaccination for personnel and eligible UC, result
in very low likelihood that processing UC in accordance with existing
immigration procedures under Title 8 of the U.S. Code will result in
undue strain on the U.S. healthcare system or healthcare resources.
Moreover, UC released to a vetted sponsor or placed in a permanent ORR
shelter do not pose a significant level of risk for COVID-19 spread
into the community because they are released after having undergone
testing, quarantine and/or isolation, and vaccination when possible,
and their sponsors are provided with appropriate medical and public
health direction.
A copy of the Order is provided below, and a copy of the signed
Order can be found at <a href="https://www.cdc.gov/coronavirus/2019-ncov/more/pdf/NoticeUnaccompaniedChildren.pdf">https://www.cdc.gov/coronavirus/2019-ncov/more/pdf/NoticeUnaccompaniedChildren.pdf</a>.
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Disease Control and Prevention (CDC)
Order Under Sections 362 & 365 of the Public Health Service Act (42
U.S.C. 265, 268) and 42 CFR 71.40
Public Health Determination Regarding an Exception for Unaccompanied
Noncitizen Children From the Order Suspending the right to Introduce
Certain Persons From Countries Where a Quarantinable Communicable
Disease Exists
As part of U.S. government efforts to mitigate the introduction,
transmission, and spread of COVID-19, CDC issued an Order on March 20,
2020 (March Order), later replaced on October 13, 2020 (October
Order),\6\ suspending the right to introduce \7\ certain persons into
the United States from countries or places where a quarantinable
communicable disease \8\ exists in order to protect the public health
from an increase in risk of the introduction of COVID-19. The Orders
applied specifically to covered noncitizens \9\ who would otherwise be
introduced into a congregate setting in land or coastal ports of entry
(POE) or Border Patrol stations at or near the U.S. borders \10\ with
Canada and Mexico. On February 17, 2021, CDC published a notice \11\
(February Notice) announcing the temporary exception of unaccompanied
noncitizen children from the October Order; the February Notice stated
that CDC would complete a public health assessment and publish an
additional notice or a modified Order. As explained below, CDC has
concluded that it is appropriate to except unaccompanied noncitizen
children \12\ (UC) from the October Order given the measures in place
to prevent and mitigate transmission of COVID-19 in this population.
---------------------------------------------------------------------------
\6\ Order Suspending the Right to Introduce Certain Persons from
Countries Where a Quarantinable Communicable Disease Exists, 85 FR
65806 (Oct. 16, 2020). The October Order replaced the Order
Suspending Introduction of Certain Persons from Countries Where a
Communicable Disease Exists, issued on March 20, 2020, extended on
April 20, 2020, and amended May 19, 2020. Notice of Order Under
Sections 362 and 365 of the Public Health Service Act Suspending
Introduction of Certain Persons from Countries Where a Communicable
Disease Exists, 85 FR 17060 (Mar. 26, 2020); Extension of Order
Under Sections 362 and 365 of the Public Health Service Act; Order
Suspending Introduction of Certain Persons From Countries Where a
Communicable Disease Exists, 85 FR 22424 (Apr. 22, 2020); Amendment
and Extension of Order Under Sections 362 and 365 of the Public
Health Service Act; Order Suspending Introduction of Certain Persons
from Countries Where a Communicable Disease Exists, 85 FR 31503 (May
26, 2020).
\7\ ``Suspension of the right to introduce'' means to cause the
temporary cessation of the effect of any law, rule, decree, or order
pursuant to which a person might otherwise have the right to be
introduced or seek introduction into the United States. 42 CFR
71.40(b)(5).
\8\ Quarantinable communicable diseases are any of the
communicable diseases listed in Executive Order, as provided under
Sec. 361 of the Public Health Service Act (42 U.S.C. 264). 42 CFR
71.1. The list of quarantinable communicable diseases currently
includes cholera, diphtheria, infectious tuberculosis, plague,
smallpox, yellow fever, viral hemorrhagic fevers (Lassa, Marburg,
Ebola, Crimean-Congo, South American, and others not yet isolated or
named), severe acute respiratory syndromes (including Middle East
respiratory syndrome and COVID-19), and influenza caused by novel or
reemergent influenza viruses that are causing, or have the potential
to cause, a pandemic. See Exec. Order 13295, 68 FR 17255 (Apr. 4,
2003), as amended by Exec. Order 13375, 70 FR 17299 (Apr. 1, 2005)
and Exec. Order 13674, 79 FR 45671 (July 31, 2014).
\9\ This Order is using the term ``covered noncitizens'' to have
the same meaning as ``covered aliens'' in the October Order. See
October Order, 85 FR 65806, 65807 (defining ``covered aliens'' as
``persons traveling from Canada or Mexico (regardless of their
country of origin) who would otherwise be introduced into a
congregate setting in a land or coastal Port of Entry (POE) or
Border Patrol station at or near the United States borders with
Canada or Mexico,'' subject to certain exceptions. These persons
``would typically be aliens seeking to enter the United States at
POEs who do not have proper travel documents, aliens whose entry is
otherwise contrary to law, and aliens who are apprehended near the
border seeking to unlawfully enter the United States between
POEs.'').
\10\ When U.S. Customs and Border Protection (CBP) or the U.S.
Department of Homeland Security (DHS) partner agencies encounter
noncitizens off the coast closely adjacent to the land borders, it
transfers the noncitizens for processing in POE or Border Patrol
stations closest to the encounter. Absent the October Order, such
noncitizens would be held in the same congregate settings and
holding facilities as any encounters along the land border,
resulting in similar public health concerns related to the
introduction, transmission, and spread of COVID-19.
\11\ Notice of Temporary Exception from Expulsion of
Unaccompanied Noncitizen Children Encountered in the United States
Pending Forthcoming Public Health Determination, 86 FR 9942 (Feb.
17, 2021).
\12\ CDC's understanding is that this class of individuals is
similar to or the same as those individuals who would be considered
``unaccompanied alien children'' (see 6 U.S.C. 279) for purposes of
HHS ORR custody, were DHS to make the necessary immigration
determinations under Title 8 of the U.S. Code.
---------------------------------------------------------------------------
Under the March and October Orders, UC were included as part of the
covered noncitizens for whom the right of introduction into the United
States was suspended; however, UC largely have been excepted from the
application of the Order, first pursuant to judicial
[[Page 38719]]
action,\13\ and later under the February Notice. As a result, since
November 18, 2020, UC have generally been processed under regular
immigration processes under Title 8 of the U.S. Code and therefore
referred from U.S. Customs and Border Protection (CBP), an agency
within the U.S. Department of Homeland Security (DHS), to the Office of
Refugee Resettlement (ORR) within the U.S. Department of Health and
Human Services' (HHS) Administration for Children and Families (ACF)
for care and custody, according to the usual legal framework governing
such referrals.\14\ Pursuant to these requirements, UC encountered in
the United States by CBP generally are transferred to ORR within 72
hours of intake at a POE or Border Patrol station.\15\ Upon transfer to
ORR custody, UC are transported to facilities that operate under
cooperative agreements or contracts with HHS and must meet ORR
requirements to ensure a high level of quality, child-focused care by
appropriately trained staff. ORR operates 210 facilities in 22 states.
At these facilities, case managers work to identify and ultimately
place UC with vetted sponsors (usually family members within the United
States).
---------------------------------------------------------------------------
\13\ Dkt. No. 80, P.J.E.S. v. Mayorkas et al., No. 1:20-cv-02245
(D.D.C. Nov. 18, 2020).
\14\ See 8 U.S.C. 1232; Stipulated Settlement Agreement, Flores
v. Reno, No. CV 85-cv-4544 (C.D. Cal. Jan. 17, 1997).
\15\ 8 U.S.C. 1232(b)(3).
---------------------------------------------------------------------------
Beginning in mid-2020, the United States began experiencing an
increase in the number of UC arriving daily at the southern border. By
February 2021, due to the record numbers of transfers to ORR, UC being
held in CBP custody awaiting ORR transfer increased due to a lack of
available space in ORR facilities. ORR and other government agencies
responded to the influx of UC by rapidly expanding capacity and
developing robust, safe COVID-19 protocols in consultation with CDC.
In conjunction with the Federal Emergency Management Agency (FEMA)
and with the assistance of the Department of Defense, HHS and ORR
opened temporary intake facilities along the U.S. southern border and
in the interior to add capacity. A total of 14 Emergency Intake Sites
(EIS) \16\ were opened across the United States. CDC assisted ORR by
sending medical epidemiologists and other public health professionals
to provide technical assistance on COVID-19 mitigation protocols. ORR
now has a capacity of over 20,000 beds; currently, over 15,100 children
are in its care. ORR has successfully processed and discharged over
55,000 UC since January 20, 2021. The successful efforts to expand
capacity for UC have resulted in sufficient capacity at ORR sites--both
along the border and in the interior--significantly reducing the length
of time that UC remain in CBP custody. As of July 13, 2021, the current
average time a UC remained in CBP custody before transferring to ORR
custody was 26 hours, and four UC have been in CBP custody for over 72
hours.\17\ This represents a substantial improvement from early
2021.\18\ While the number of UC encountered may remain at elevated
levels, expanded ORR capacity and improved processing methods have
resulted in UC remaining in CBP custody for shorter periods of time.
---------------------------------------------------------------------------
\16\ EIS are intended to be a temporary measure providing a
standard of care consistent with the best interest of children
during an emergency situation. When fully operational with
appropriate staffing and basic medical resources, EIS provide a
safer, less crowded environment where UC are cared for, processed as
quickly as possible, and are either released to a sponsor or
transferred to an appropriate ORR facility for longer-term care.
When no longer necessary, EIS facilities are demobilized.
\17\ HHS Executive Leadership Information Brief (internal
document). Published July 12, 2021.
\18\ For comparison, on March 29, 2021, nearly 5,500 UC were in
CBP custody, with 3,540 of those UC in custody for longer than 72
hours; as of March 31, 2021, the average time in CBP custody for UC
was 131 hours.
---------------------------------------------------------------------------
The processes in place at the EIS and at ORR's regular facilities
afford sufficient resources and time to identify SARS-CoV-2 cases and
implement environmental controls to attenuate the risk of COVID-19
infection and spread.\19\ With CDC's assistance and guidance, ORR also
has implemented COVID-19 testing regimes for UC in its care and
continues to practice other mitigation measures to further prevent and
curtail any transmission of the SARS-CoV-2 virus among UC in its care.
These strategies include universal and proper wearing of masks,
physical distancing, frequent hand washing, cleaning and disinfection,
improved ventilation, staff vaccination, and cohorting UC according to
their COVID-19 test status. Per CDC recommendation, ORR conducts serial
testing of staff to allow early detection of a possible outbreak.\20\
ORR contract staff working in facilities serving UC are encouraged to
receive the COVID-19 vaccine.\21\ As advised by CDC, ORR restricts
movement of unvaccinated personnel between facilities to reduce
potential outbreaks resulting from transfer of unvaccinated staff
between shelters. These measures help reduce the spread of COVID-19
among UC prior to being introduced into U.S. communities.
---------------------------------------------------------------------------
\19\ Specifically, ORR currently uses the following COVID-19
protocols for UC at EIS: UC are tested for COVID-19 by CBP prior to
being transported to an EIS and then are also tested upon arrival to
EIS. UC are required to quarantine for the first 7 days after
admission to an EIS and can be released from quarantine on the
morning of day 8 if they remain asymptomatic and had a negative
COVID-19 test in the 48 hours prior. In addition to testing at
admission and during quarantine, UC are routinely tested during
their stay at EIS (e.g., every three days), and any UC that develops
symptoms consistent with COVID-19 infection is immediately tested.
UC who test positive for COVID-19 are required to be isolated for 10
days from the date the positive test was collected, or 10 days from
the date of symptom onset if asymptomatic. Contact tracing is
conducted whenever anyone tests positive for COVID-19; UC exposed to
COVID-19 are quarantined for seven days, tested on the 5th, 6th, or
7th day of their quarantine, and are released upon receiving a
negative test result. ORR has also issued similar COVID-19 guidance
to licensed facilities.
\20\ In ORR facilities where the risk of transmission is
moderate to high, public health officials working collaboratively
with ORR facilities can determine the appropriateness of offering
screening and repeat testing of randomly selected asymptomatic staff
and children at the facility, as feasible, to identify cases and
prevent secondary transmission.
\21\ Additional criteria (e.g., continued symptom monitoring and
correct and consistent wearing of masks) should be met by ORR as
outlined on CDC's website. See Science Brief: Options to Reduce
Quarantine for Contacts of Persons with SARS-CoV-2 Infection Using
Symptom Monitoring and Diagnostic Testing, Centers for Disease
Control and Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/more/scientific-brief-options-to-reduce-quarantine.html">https://www.cdc.gov/coronavirus/2019-ncov/more/scientific-brief-options-to-reduce-quarantine.html</a> (last
updated Dec. 2, 2020).
---------------------------------------------------------------------------
In addition to the mitigation measures at EIS and ORR facilities
outlined above, following FDA expansion of the emergency use
authorization for the Pfizer-BioNTech COVID-19 vaccine for adolescents
12 to 15 years of age, CDC provided updated recommendations to ORR
regarding the vaccination of UC ages 12 and older. ORR subsequently
approved the administration of COVID-19 vaccine for age-eligible
children. Under ORR care, children ages 12 and over are offered a
COVID-19 vaccine as soon as possible, as long as there are no
contraindications and vaccination does not delay unification of UC with
sponsors. Of the total population of UC in ORR care, approximately 90%
are eligible for vaccination and, as of July 12, 2021, ORR has
administered at least one dose of the COVID-19 vaccine to 10,124 UC.
CDC considers these vaccination efforts to be a critical risk reduction
measure that supports excepting UC from the October Order.
Although 8,435 UC have tested positive for COVID-19 while at ORR
shelters during the period of March 24, 2020 to July 8, 2021, 8,081 of
those UC testing positive have successfully completed medical
isolation, with few requiring medical treatment. Similarly, 6,590
COVID-19 cases have been reported among 14 EIS as of July 7, 2021;
however only 14 (0.5%) of the UC in this group have required
hospitalization (including two severe
[[Page 38720]]
cases requiring intensive care). These numbers indicate that the risk
of overburdening the local healthcare systems by UC presenting with
severe COVID-19 disease remains low. Based on the robust network of ORR
care facilities and the testing and medical care available therein, as
well as COVID-19 mitigation protocols including vaccination for
personnel and eligible UC, there is very low likelihood that processing
UC in accordance with existing Title 8 procedures will result in undue
strain on the U.S. healthcare system or healthcare resources. Moreover,
UC released to a vetted sponsor or placed in a permanent ORR shelter do
not pose a significant level of risk for COVID-19 spread into the
community because they are released after having undergone testing,
quarantine and/or isolation, and vaccination when possible, and their
sponsors are provided with appropriate medical and public health
direction.
CDC thus finds that, at this time,\22\ there is appropriate
infrastructure in place to protect the children, caregivers, and local
communities from elevated risk of COVID-19 transmission as a result of
the introduction of UC, and U.S. healthcare resources are not
significantly impacted by providing UC necessary care. CDC believes the
COVID-19-related public health concerns associated with UC introduction
can be adequately addressed without UC being subject to the October
Order, thereby permitting the government to better address the
humanitarian challenges for these children. Based on the foregoing, CDC
is fully excepting UC from the October Order,\23\ and the February
Notice is hereby superseded. This Order shall be immediately effective.
I consulted with DHS and other federal departments as needed before I
issued this Order and requested that DHS continue to aid in the
enforcement of this Order because CDC does not have the capability,
resources, or personnel needed to do so.\24\
---------------------------------------------------------------------------
\22\ This situation could change based on an increased influx of
UC, changes in COVID-19 infection dynamics among UC, or unforeseen
reductions in housing capacity.
\23\ See 86 FR 9942.
\24\ 42 U.S.C. 268; 42 CFR 71.40(d).
---------------------------------------------------------------------------
This Order is not a rule subject to notice and comment under the
Administrative Procedure Act (APA). Even if it were, notice and comment
and a delay in effective date are not required because there is good
cause to dispense with prior public notice and the opportunity to
comment on this Order and a delayed effective date. Given the public
health emergency caused by COVID-19 and the highly unpredictable nature
of its transmission and spread, it would be impracticable and contrary
to public health practices and the public interest to delay the issuing
and effective date of this Order with respect to UC. In addition,
because this Order concerns the ongoing discussions with Canada and
Mexico on how best to control COVID-19 transmission over our shared
borders, it directly ``involve[s] . . . a . . . foreign affairs
function of the United States.'' 5 U.S.C. 553(a)(1). Notice and comment
and a delay in effective date would not be required for that reason as
well.
Authority
The authority for this Order is Sections 362 and 365 of the Public
Health Service Act (42 U.S.C. 265, 268) and 42 CFR 71.40.
Dated: July 19,2021.
Sherri Berger,
Chief of Staff, Centers for Disease Control and Prevention.
[FR Doc. 2021-15699 Filed 7-20-21; 4:15 pm]
BILLING CODE 4163-18-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on July 22, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.