Rule2022-01402
Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Canada
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
January 24, 2022
Effective
January 22, 2022
Issuing agencies
Homeland Security DepartmentU.S. Customs and Border Protection
Abstract
This Notification announces the decision of the Secretary of Homeland Security ("Secretary"), after consulting with interagency partners, to temporarily restrict travel by certain noncitizens into the United States at land ports of entry, including ferry terminals ("land POEs") along the United States-Canada border. These restrictions only apply to noncitizens who are neither U.S. nationals nor lawful permanent residents ("noncitizen non-LPRs"). Under the temporary restrictions, DHS will allow processing for entry into the United States of only those noncitizen non-LPRs who are fully vaccinated against COVID-19 and can provide proof of being fully vaccinated against COVID-19 upon request. The restrictions provide for limited exceptions, largely consistent with the limited exceptions currently available with respect to COVID-19 vaccination in the international air travel context. Unlike past actions of this type, this Notification does not contain an exception for essential travel.
Full Text
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<title>Federal Register, Volume 87 Issue 15 (Monday, January 24, 2022)</title>
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[Federal Register Volume 87, Number 15 (Monday, January 24, 2022)]
[Rules and Regulations]
[Pages 3429-3433]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-01402]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
19 CFR Chapter I
[Docket No. DHS-2022-0002]
RIN 1601-ZA20
Notification of Temporary Travel Restrictions Applicable to Land
Ports of Entry and Ferries Service Between the United States and Canada
AGENCY: Office of the Secretary, U.S. Department of Homeland Security;
U.S. Customs and Border Protection, U.S. Department of Homeland
Security.
ACTION: Notification of temporary travel restrictions.
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SUMMARY: This Notification announces the decision of the Secretary of
Homeland Security (``Secretary''), after consulting with interagency
partners, to temporarily restrict travel by certain noncitizens into
the United States at land ports of entry, including ferry terminals
(``land POEs'') along the United States-Canada border. These
restrictions only apply to noncitizens who are neither U.S. nationals
nor lawful permanent residents (``noncitizen non-LPRs''). Under the
temporary restrictions, DHS will allow processing for entry into the
United States of only those noncitizen non-LPRs who are fully
vaccinated against COVID-19 and can provide proof of being fully
vaccinated against COVID-19 upon request. The restrictions provide for
limited exceptions, largely consistent with the limited exceptions
currently available with respect to COVID-19 vaccination in the
international air travel context. Unlike past actions of this type,
this Notification does not contain an exception for essential travel.
DATES: These restrictions go into effect at 12 a.m. Eastern Standard
Time (EST) on January 22, 2022, and will remain in effect until 11:59
p.m. Eastern Daylight Time (EDT) on April 21, 2022, unless amended or
rescinded prior to that time.
FOR FURTHER INFORMATION CONTACT: Petra Horne, Office of Field
Operations, U.S. Customs and Border Protection (CBP), 202-325-1517.
SUPPLEMENTARY INFORMATION:
Background
On March 24, 2020, the Department of Homeland Security (``DHS'')
published a Notification of its decision to temporarily limit the
travel of certain noncitizen non-LPRs into the United States at land
POEs along the United States-Canada border to ``essential travel,'' as
further defined in that document.\1\ The March 24, 2020 Notification
described the developing circumstances regarding the COVID-19 pandemic
and stated that, given the outbreak, continued transmission, and spread
of the virus associated with COVID-19 within the United States and
globally, DHS had determined that the risk of continued transmission
and spread of the virus associated with COVID-19 between the United
States and Canada posed a ``specific threat to human life or national
interests.'' Under the March 24, 2020 Notification, DHS continued to
allow certain categories of travel, described as ``essential travel.''
Essential travel included travel to attend educational institutions,
travel to work in the United States, travel for emergency response and
public health purposes, and travel for lawful cross-border trade.
Essential travel also included travel by U.S. citizens and lawful
permanent residents returning to the United States.
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\1\ 85 FR 16548 (Mar. 24, 2020). That same day, DHS also
published a Notification of its decision to temporarily limit the
travel of certain noncitizen non-LPR persons into the United States
at land POEs along the United States-Mexico border to ``essential
travel,'' as further defined in that document. 85 FR 16547 (Mar. 24,
2020).
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From March 2020 through October 2021, in consultation with
interagency partners, DHS reevaluated and ultimately extended the
restrictions on non-essential travel each month. The most recent action
of this type, published on October 21, 2021, continued the restrictions
until 11:59 p.m. EST on January 21, 2022.\2\ In that document, DHS
acknowledged that notwithstanding the continuing threat to human life
or national interests posed by COVID-19--as well as recent increases in
case levels,
[[Page 3430]]
hospitalizations, and deaths due to the Delta variant--COVID-19
vaccines are effective against Delta and other known COVID-19 variants.
These vaccines protect people from becoming infected with and severely
ill from COVID-19 and significantly reduce the likelihood of
hospitalization and death. DHS also acknowledged the White House COVID-
19 Response Coordinator's September 2021 announcement regarding the
United States' plans to revise standards and procedures for incoming
international air travel to enable the air travel of travelers fully
vaccinated against COVID-19 beginning in early November 2021.\3\ DHS
further stated that the Secretary intended to do the same with respect
to certain travelers seeking to enter the United States from Mexico and
Canada at land POEs to align the treatment of different types of travel
and allow those who are fully vaccinated against COVID-19 to travel to
the United States for non-essential reasons.\4\
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\2\ See 86 FR 58218 (Oct. 21, 2021) (extending restrictions for
the United States-Canada border); 86 FR 58216 (Oct. 21, 2021)
(extending restrictions for the United States-Mexico border).
\3\ See Press Briefing by Press Secretary Jen Psaki (Sept. 20,
2021), <a href="https://www.whitehouse.gov/briefing-room/press-briefings/2021/09/20/press-briefing-by-press-secretary-jen-psaki-september-20-2021/">https://www.whitehouse.gov/briefing-room/press-briefings/2021/09/20/press-briefing-by-press-secretary-jen-psaki-september-20-2021/</a> (``As was announced in a call earlier today . . . [w]e--
starting in . . . early November [will] be putting in place strict
protocols to prevent the spread of COVID-19 from passengers flying
internationally into the United States by requiring that adult
foreign nationals traveling to the United States be fully
vaccinated.'').
\4\ See 86 FR 58218; 86 FR 58216.
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On October 29, 2021, following additional announcements regarding
changes to the international air travel policy by the President of the
United States and the Centers for Disease Control and Prevention
(``CDC''),\5\ DHS announced that beginning November 8, 2021, non-
essential travel of noncitizen non-LPRs would be permitted through land
POEs, provided that the traveler is fully vaccinated against COVID-19
and can provide proof of full COVID-19 vaccination status.\6\ DHS also
announced that beginning in January 2022, inbound noncitizen non-LPRs
traveling to the United States via land POEs--whether for essential or
non-essential reasons--would be required to be fully vaccinated against
COVID-19 and provide proof of full COVID-19 vaccination status.\7\
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\5\ Changes to requirements for travel by air were implemented
by, inter alia, Presidential Proclamation 10294 of October 25, 2021,
86 FR 59603 (Oct. 28, 2021) (Presidential Proclamation), and a
related CDC order, 86 FR 61224 (Nov. 5, 2021) (CDC Order). See also
CDC, Requirement for Proof of Negative COVID-19 Test or Recovery
from COVID-19 for All Air Passengers Arriving in the United States,
<a href="https://www.cdc.gov/quarantine/pdf/Global-Testing-Order-10-25-21-p.pdf">https://www.cdc.gov/quarantine/pdf/Global-Testing-Order-10-25-21-p.pdf</a> (Oct. 25, 2021); Requirement for Airlines and Operators to
Collect Contact Information for All Passengers Arriving into the
United States, <a href="https://www.cdc.gov/quarantine/pdf/CDC-Global-Contact-Tracing-Order-10-25-2021-p.pdf">https://www.cdc.gov/quarantine/pdf/CDC-Global-Contact-Tracing-Order-10-25-2021-p.pdf</a> (Oct. 25, 2021). CDC later
amended its testing order following developments related to the
Omicron variant. See CDC, Requirement for Proof of Negative COVID-19
Test Result or Recovery from COVID-19 for All Airline Passengers
Arriving into the United States, <a href="https://www.cdc.gov/quarantine/pdf/Amended-Global-Testing-Order_12-02-2021-p.pdf">https://www.cdc.gov/quarantine/pdf/Amended-Global-Testing-Order_12-02-2021-p.pdf</a> (Dec. 2, 2021).
\6\ See, e.g., DHS, Fact Sheet: Guidance for Travelers to Enter
the U.S. at Land Ports of Entry and Ferry Terminals, <a href="https://www.dhs.gov/news/2021/10/29/fact-sheet-guidance-travelers-enter-us-land-ports-entry-and-ferry-terminals">https://www.dhs.gov/news/2021/10/29/fact-sheet-guidance-travelers-enter-us-land-ports-entry-and-ferry-terminals</a> (updated Nov. 23, 2021). See
also 86 FR 72842 (Dec. 23, 2021) (describing the announcement with
respect to Canada); 86 FR 72843 (Dec. 23, 2021) (describing the
announcement with respect to Mexico).
\7\ See DHS, DHS Releases Details for Fully Vaccinated, Non-
Citizen Travelers to Enter the U.S. at Land and Ferry Border
Crossings, <a href="https://www.dhs.gov/news/2021/10/29/dhs-releases-details-fully-vaccinated-non-citizen-travelers-enter-us-land-and-ferry">https://www.dhs.gov/news/2021/10/29/dhs-releases-details-fully-vaccinated-non-citizen-travelers-enter-us-land-and-ferry</a> (Oct.
29, 2021); DHS, Fact Sheet: Guidance for Travelers to Enter the U.S.
at Land Ports of Entry and Ferry Terminals, <a href="https://www.dhs.gov/news/2021/10/29/fact-sheet-guidance-travelers-enter-us-land-ports-entry-and-ferry-terminals">https://www.dhs.gov/news/2021/10/29/fact-sheet-guidance-travelers-enter-us-land-ports-entry-and-ferry-terminals</a> (updated Nov. 23, 2021); see also DHS,
Frequently Asked Questions: Guidance for Travelers to Enter the
U.S., <a href="https://www.dhs.gov/news/2021/10/29/frequently-asked-questions-guidance-travelers-enter-us">https://www.dhs.gov/news/2021/10/29/frequently-asked-questions-guidance-travelers-enter-us</a> (updated Nov. 23, 2021).
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DHS has continued to monitor and respond to the COVID-19 pandemic.
On December 14, 2021, at DHS's request, CDC provided a memorandum to
DHS describing the current status of the COVID-19 public health
emergency. The CDC memorandum warned of ``case counts and deaths due to
COVID-19 continuing to increase around the globe and the emergence of
new and concerning variants,'' and emphasized that ``[v]accination is
the single most important measure for reducing risk for SARS-CoV-2
transmission and avoiding severe illness, hospitalization, and death.''
\8\ Given these considerations, CDC recommended that proof of COVID-19
vaccination requirements be expanded to cover both essential and non-
essential noncitizen non-LPR travelers.
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\8\ See Memorandum from CDC to CBP re Public Health
Recommendation for Proof of COVID-19 Vaccination at U.S. Land
Borders (Dec. 14, 2021).
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According to CDC, studies indicate that individuals vaccinated
against COVID-19 are five times less likely to be infected with COVID-
19 and more than eight times less likely to require hospitalization
than those who are unvaccinated. Further, unvaccinated people are 14
times more likely to die from COVID-19 than those who are vaccinated.
Such increases in hospitalization and death rates strain critical
healthcare resources, which in some parts of the United States may be
in short supply.\9\ As CDC wrote, ``proof of vaccination of travelers
helps protect the health and safety of both the personnel at the border
and other travelers, as well as U.S. destination communities. Border
security and transportation security work is part of the nation's
critical infrastructure and presents unique challenges for ensuring the
health and safety of personnel and travelers.''
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\9\ At the time of the memorandum, CDC noted that the Delta
variant was still the predominant variant in the United States, but
that ongoing research indicated that the Omicron variant may spread
more easily than the original SARS-CoV-2 virus. CDC noted that
further studies are underway to assess concerns about whether the
Omicron variant may have increased transmissibility, confer
resistance to therapeutics, or partially escape infection- or
vaccine-induced immunity.
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CDC's memorandum also acknowledged that because of operational
considerations, requirements at land POEs may differ from those
implemented for air travel. CDC recognized the operational challenges,
as described by DHS, with imposing a testing requirement at land POEs,
and noted key differences between land travel and air travel with
respect to the volume of travel, predictability, and infrastructure
involved.\10\ In the absence of required pre-entry COVID-19 testing,
CDC described a proof of COVID-19 vaccination requirement as
``essential as a matter of public health.'' \11\
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\10\ CBP assesses that a testing option is not operationally
feasible given the significant number of land border crossers that
go back on forth on a daily, or near-daily basis, for work or
school. A negative COVID-19 test requirement would mean that such
individuals would have to get tested just about every day. This is
not currently feasible, given the cost and supply constraints,
particularly in smaller rural locations. Further, CBP reports
additional operational challenges associated with verifying test
results, given the wide variation in documentation.
\11\ See Memorandum from CDC to CBP (Dec. 14, 2021).
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In a January 14, 2022 update, also at the request of DHS, CDC
confirmed its prior recommendation. Specifically, CDC noted the ``rapid
increase'' of COVID-19 cases across the United States that have
contributed to high levels of community transmission and increased
rates of new hospitalizations and deaths. According to CDC, between
January 5 and January 11, 2022, the seven-day average for new hospital
admissions of patients with confirmed COVID-19 increased by 24 percent
over the prior week, and the seven-day average for new COVID-19-related
deaths rose to 2,991, an increase of 33.7 percent compared to the prior
week. CDC emphasized that this increase has exacerbated the strain on
the United States' healthcare system and again urged that
``[v]accination of the broadest number of people best protects all
individuals and preserves the United
[[Page 3431]]
States' critical infrastructure, including healthcare systems and
essential workforce.'' CDC thus urged ``the most comprehensive
requirements possible for proof of vaccination'' and specifically
recommended against exceptions for specific worker categories as a
public health matter.\12\
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\12\ Memorandum from CDC to CBP re Public Health Recommendation
for Proof of COVID-19 Vaccination at U.S. Land Borders--Addendum
(Jan. 18, 2022).
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DHS has conferred with interagency partners, taken into account all
relevant factors, including economic considerations and CDC's public
health input, and concludes that a broad COVID-19 vaccination
requirement at land POEs is necessary and appropriate. In particular,
DHS notes that, according to the information provided by CDC, those who
are not fully vaccinated against COVID-19 have proven to be more likely
to be infected by COVID-19, to spread COVID-19 to others, to suffer
severe symptoms, and to require the use of scarce hospital resources.
DHS acknowledges that in past actions of this type, it has continued to
allow essential travel by certain noncitizen non-LPRs who are not fully
vaccinated against COVID-19. The assessment has, however, changed in
light of the following two factors: (1) The rapid increase of COVID-19
cases; and (2) the increasing availability of COVID-19 vaccines.
With respect to the increasing availability of COVID-19 vaccines,
at this point, COVID-19 vaccines--which according to CDC are ``the
single most important measure'' for responding to COVID-19 \13\--are
widely available and have been increasingly available for months. In
Canada, 77.1 percent of the entire population is now fully vaccinated
against COVID-19, while 87.8 percent of individuals 12 years and older
are fully vaccinated against COVID-19.\14\ In Mexico, 55.9 percent of
the population is fully vaccinated against COVID-19,\15\ while as of
October 2021, 72 percent of those living in border regions were fully
vaccinated against COVID-19.\16\ In October 2021, DHS announced its
intention to expand the temporary travel restrictions applicable to
land POEs by applying the COVID-19 vaccination requirement to those
traveling for essential reasons, thus recognizing the importance of
fair notice and allowing ample time for noncitizen non-LPR essential
travelers to get fully vaccinated against COVID-19. For these reasons,
DHS believes that it is now necessary and appropriate to align COVID-19
vaccine restrictions at land POEs to current U.S. government policy
governing incoming international air travel.\17\
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\13\ See Memorandum from CDC to CBP (Dec. 14, 2021).
\14\ Canadian statistics may be found at: <a href="https://health-infobase.canada.ca/covid-19/vaccination-coverage/">https://health-infobase.canada.ca/covid-19/vaccination-coverage/</a> (Jan. 17, 2022).
\15\ Mexican statistics may be found at: <a href="https://ourworldindata.org/covid-vaccinations?country=MEX">https://ourworldindata.org/covid-vaccinations?country=MEX</a> (Jan. 17, 2022).
\16\ Government of Mexico briefing for the NSC-led Mexico-U.S.
International Travel Working Group, October 2021.
\17\ For a discussion of the current U.S. government policy
regarding international air travel, see, supra, n. 45.
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Moreover, COVID-19 cases continue to increase rapidly across the
United States, as described below. This surge is currently driven by
the Omicron variant, which CDC's Nowcast model projects may account for
approximately 98.3 percent of cases.\18\ On January 5, 2022, 705,264
new COVID-19 cases were reported, more than double the peak in January
2021. Communities across the United States are now experiencing high
levels of community transmission, and hospitalizations and deaths are
also on the rise.\19\ This surge underscores the need for the policy
that DHS previously announced, and is an important reason why DHS, in
consultation with interagency partners, is declining to implement broad
exceptions for certain categories of travelers.
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\18\ Variant Proportions, Centers for Disease Control and
Prevention, <a href="https://covid.cdc.gov/covid-data-tracker/#variant-proportions">https://covid.cdc.gov/covid-data-tracker/#variant-proportions</a> (week ending Jan. 8, 2022).
\19\ COVID Data Tracker Weekly Review: Interpretive Summary for
the Centers for Disease Control and Prevention, COVID Data Tracker
Weekly Review: Interpretive Summary for January 7, 2022, <a href="https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html">https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html</a>
(Jan. 7, 2022).
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In reaching this conclusion, DHS weighed the concerns of industry
and, in particular, firms employing or relying on long-haul truck
drivers and persons engaged in freight rail operations.\20\ DHS
carefully considered alternative approaches, including exceptions for
these categories of workers. As a public health matter, CDC strongly
discouraged additional exceptions, particularly in light of the current
increase in COVID-19 cases and related resulting strains on the
healthcare system. Even if such workers do not engage in extended
interaction with others, they still engage in activities that involve
contact with others, thereby increasing the risk of contributing to
community spread of COVID-19. Such workers also may enter the United
States after contracting COVID-19, become seriously ill after arrival,
and require scarce healthcare resources as a result. Given CDC's
recommendation, and after extensive consultation with interagency
partners, DHS has determined that such activities do not warrant an
exception from these restrictions because these persons still present a
public health risk. A COVID-19 vaccination requirement at land POEs
helps protect the health and safety of the personnel at the border,
other travelers, and the U.S. communities where these persons may be
traveling and spending time among the public. A COVID-19 vaccination
requirement for these individuals also reduces burdens on local
healthcare resources in U.S. communities. This approach aligns the U.S.
COVID-19 policies applicable to land POEs with air travel restrictions
that require noncitizen non-LPRs traveling by air to the United States
for both essential and non-essential reasons to be fully vaccinated
against COVID-19 and provide related proof of vaccination, with very
few exceptions. This approach also aligns with new travel restrictions
imposed by Canada on January 15, 2022, which similarly impose a COVID-
19 vaccination requirement on cross-border travel, with no exception
for truck drivers or freight rail operators.\21\
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\20\ DHS acknowledges that past actions of this type exempted
freight rail, but DHS notes that the considerations applicable to
other forms of travel previously designated as essential apply
equally in the freight rail context.
\21\ Public Health Agency of Canada website Requirements for
Truckers entering Canada in effect as of January 15, 2022, <a href="https://www.Canada.ca/en/public-health/news/2022/01/requirements-for-truckers-entering-canada-in-effect-as-of-january-15-2022.html">https://www.Canada.ca/en/public-health/news/2022/01/requirements-for-truckers-entering-canada-in-effect-as-of-january-15-2022.html</a>;
Public Health Agency of Canada website: Minimizing the Risk of
Exposure to COVID-19 in Canada Order (Prohibition of Entry into
Canada from the United States), Section 10 of order is the provision
that went into place on 15 January 2022, <a href="https://orders-in-council.canada.ca/attachment.php?attach=41322&lang=en">https://orders-in-council.canada.ca/attachment.php?attach=41322&lang=en</a>.
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DHS also acknowledges concerns among some industry stakeholders
that this policy, however necessary to protect the American public,
could disrupt cross-border economic activity. In consultation with
interagency partners, DHS has carefully considered these concerns. DHS
has conferred with interagency partners and determined that these
concerns are outweighed by the competing public health concerns and the
wide availability of COVID-19 vaccines, coupled with the growing body
of evidence that employment-related COVID-19 vaccine mandates result in
high levels of COVID-19 vaccine acceptance among employees.\22\
[[Page 3432]]
A recent White House analysis highlights the ways in which COVID-19
vaccine requirements that cover whole industries or sectors can be
particularly effective in persuading employees to become fully
vaccinated against COVID-19.\23\ The incentive effects of industry-wide
requirements, as well as the introduction of a range of other policies
intended to incentivize vaccination against COVID-19, reduce the
likelihood of a significant disruption in cross-border economic
activity, while protecting public health.\24\
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\22\ See, e.g., David Koenig, Associated Press, American,
Alaska, JetBlue join growing list of airlines requiring employees to
be vaccinated against COVID-19, <a href="https://www.usatoday.com/story/travel/airline-news/2021/10/02/american-joins-list-airlines-requiring-employee-vaccinations/5968626001/">https://www.usatoday.com/story/travel/airline-news/2021/10/02/american-joins-list-airlines-requiring-employee-vaccinations/5968626001/</a> (Oct. 2, 2021) (``United
Airlines took an early and tough stance to require vaccination.
United said Thursday that 320 of its 67,000 U.S. employees faced
termination for not getting vaccinated or seeking a medical or
religious exemption by a deadline earlier in the week.''); Novant
Health, Novant Health update on mandatory COVID-19 vaccination
program for employees, <a href="https://www.novanthealth.org/home/about-us/newsroom/press-releases/newsid33987/2576/novant-health-update-on-mandatory-covid-19-vaccination-program-for-employees.aspx">https://www.novanthealth.org/home/about-us/newsroom/press-releases/newsid33987/2576/novant-health-update-on-mandatory-covid-19-vaccination-program-for-employees.aspx</a> (Sept. 21,
2021) (``Today, 98.6% of more than 35,000 team members are compliant
with Novant Health's mandatory COVID-19 vaccination program.'');
Houston Methodist, Houston Methodist Requires COVID-19 Vaccine for
Credentialed Doctors, <a href="https://www.houstonmethodist.org/leading-medicine-blog/articles/2021/jun/houston-methodist-requires-covid-19-vaccine-for-credentialed-doctors/">https://www.houstonmethodist.org/leading-medicine-blog/articles/2021/jun/houston-methodist-requires-covid-19-vaccine-for-credentialed-doctors/</a> (June 8, 2021) (``As of June 1,
more than 99% of the system's 26,000 employees and physicians have
received the vaccine'' following issuance of a vaccine mandate in
April 2021); Alison Kosik, CNN Business, 96% of Tyson's Active
Workers are Vaccinated, CNN (Oct. 26, 2021), <a href="https://www.cnn.com/2021/10/26/business/tyson-covid-vaccine/index.html">https://www.cnn.com/2021/10/26/business/tyson-covid-vaccine/index.html</a> (``Tyson's
President and CEO Donnie King said in a blog post `we couldn't be
happier to say that, as of today, over 96% of our active team
members are vaccinated--or nearly 60,000 more than when we made the
announcement on August 3.' ''). See also generally Dave Muoio,
Fierce Healthcare, How many employees have hospitals lost to vaccine
mandates? Here are the numbers so far, <a href="https://www.fiercehealthcare.com/hospitals/how-many-employees-have-hospitals-lost-to-vaccine-mandates-numbers-so-far">https://www.fiercehealthcare.com/hospitals/how-many-employees-have-hospitals-lost-to-vaccine-mandates-numbers-so-far</a> (last updated Jan.
5, 2022) (collecting examples).
\23\ See White House Report: Vaccination Requirements Are
Helping Vaccinate More People, Protect Americans from COVID-19, and
Strengthen the Economy (Oct. 7, 2021).
\24\ On October 30, 2021, the Government of Canada imposed a
separate domestic mandate on federally regulated railways, and their
rail crew and track employees, along with air and marine operators.
Each organization is required to have a process for employee
attestation of their vaccination status; provide a description of
consequences for employees who do not comply or who falsify
information; and meet standards consistent with the approach taken
by the Government of Canada for the Core Public Administration. See
Transport Canada, Mandatory COVID-19 vaccination requirements for
federally regulated transportation employees and travellers, <a href="https://www.canada.ca/en/transport-canada/news/2021/10/mandatory-covid-19-vaccination-requirements-for-federally-regulated-transportation-employees-and-travellers.html">https://www.canada.ca/en/transport-canada/news/2021/10/mandatory-covid-19-vaccination-requirements-for-federally-regulated-transportation-employees-and-travellers.html</a> (updated Oct. 30, 2021).
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DHS acknowledges that some persons engaged in essential travel, in
particular long-haul truck drivers and persons engaged in freight rail
operations, do not engage in work-related activities that involve
extended exposure to others in congregate settings. However, there are
also important differences between (1) commercial truck, rail, and
ferry operators; and (2) air crews and sea crew members traveling
pursuant to a C-1 or D nonimmigrant visa. In the international air
travel context, under the Presidential Proclamation 10294 of October
25, 2021 \25\ (``the Presidential Proclamation''), as implemented by
CDC's Amended Order Implementing Presidential Proclamation on Advancing
the Safe Resumption of Global Travel During the COVID-19 Pandemic \26\
and Technical Instructions \27\ (``the CDC Order''), commercial air
crews are excepted from COVID-19 vaccination requirements only if they
follow industry standard protocols for the prevention of COVID-19 as
set forth in relevant Safety Alerts for Operators (``SAFO'') issued by
the Federal Aviation Administration.\28\ SAFO 20009 includes a range of
measures for air crew to protect their health and the health of others.
Sea crew members traveling pursuant to a C-1 or D nonimmigrant visa are
similarly excepted from international air travel COVID-19 vaccine
requirements only if they adhere to all industry standard protocols for
the prevention of COVID-19, as set forth in relevant CDC guidance for
crew member health.\29\ Importantly, unvaccinated noncitizen mariners
must take a predeparture COVID-19 test within one day of travel and
show a negative result prior to boarding a plane, attest that they will
self-quarantine upon arrival in the United States, and have access to
shipboard quarantine options as needed.\30\ Currently, commercial truck
drivers and freight rail and ferry operators are not subject to similar
industry-wide requirements. They are therefore not amenable to parallel
treatment at this time.
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\25\ 86 FR 59603 (Oct. 28, 2021).
\26\ 86 FR 61224 (Nov. 5, 2021).
\27\ CDC, Technical Instructions for Implementing Presidential
Proclamation Advancing the Safe Resumption of Global Travel During
the COVID-19 Pandemic and CDC's Order, <a href="https://www.cdc.gov/quarantine/order-safe-travel/technical-instructions.html">https://www.cdc.gov/quarantine/order-safe-travel/technical-instructions.html</a> (last
reviewed Nov. 30, 2021).
\28\ 86 FR 61224 (Nov. 5, 2021) (citing FAA, SAFO 20009, COVID-
19: Updated Interim Occupational Health and Safety Guidance for Air
Carriers and Crews, <a href="https://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/safo/all_safos/media/2020/SAFO20009.pdf">https://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/safo/all_safos/media/2020/SAFO20009.pdf</a> (last updated May 25, 2021)).
\29\ Information on maritime COVID-19 guidance may be found at:
<a href="https://www.cdc.gov/quarantine/index.html">https://www.cdc.gov/quarantine/index.html</a>.
\30\ See CDC, Requirement for Proof of COVID-19 Vaccination for
Air Passengers, <a href="https://www.cdc.gov/coronavirus/2019-ncov/travelers/proof-of-vaccination.html">https://www.cdc.gov/coronavirus/2019-ncov/travelers/proof-of-vaccination.html</a> (last updated Dec. 21, 2021); see also,
e.g., CDC, Technical Instructions for CDC's COVID-19 Program for
Cruise Ships Operating in U.S. Waters, <a href="https://www.cdc.gov/quarantine/cruise/management/technical-instructions-for-cruise-ships.html">https://www.cdc.gov/quarantine/cruise/management/technical-instructions-for-cruise-ships.html</a> (updated Jan. 14, 2022) and Interim Guidance for Ships on
Managing Suspected or Confirmed Cases of Coronavirus Disease 2019
(COVID-19), <a href="https://www.cdc.gov/quarantine/maritime/recommendations-for-ships.html">https://www.cdc.gov/quarantine/maritime/recommendations-for-ships.html</a> (Updated Nov. 5, 2021). As noted above, DHS
considered but rejected a testing requirement due to operational
considerations. DHS notes that sea crew members are not excepted
under this Notification.
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DHS, in consultation with its interagency partners, also has
considered the operational effect of these requirements. While these
changes potentially bring risk of increased wait times at land POEs in
the passenger and commercial environments and delays in cargo shipments
if vaccinated truck drivers and persons engaged in freight rail
operations are unavailable, DHS projects minimal, short-term
operational impacts as travelers become familiar with the new
requirements. The enforcement of these requirements will mirror the
enforcement practices implemented for non-essential travel restrictions
on November 8, 2021 which yielded minimal operational disruptions. This
assessment is based in part on observations from the implementation of
the November 8, 2021 Title 19 restrictions and on the successful
implementation of similar requirements by the Canadian government on
January 15, 2022.
Notice of Action
Following consultation with CDC and other interagency partners, and
after having considered and weighed the relevant factors, I have
determined that the risk of continued transmission and spread of the
virus associated with COVID-19 between the United States and Canada,
including the associated burden on already stressed healthcare
resources, poses an ongoing ``specific threat to human life or national
interests.'' Accordingly, and consistent with the authority granted in
19 U.S.C. 1318(b)(1)(C) and (b)(2),\31\ I have
[[Page 3433]]
determined, in consultation with interagency partners, that land POEs
along the United States-Canada border will continue to suspend normal
operations and will allow processing for entry into the United States
of only those noncitizen non-LPRs who are ``fully vaccinated against
COVID-19'' and can provide ``proof of being fully vaccinated against
COVID-19'' upon request, as those terms are defined under the
Presidential Proclamation and CDC Order. This action does not apply to
U.S. citizens, U.S. nationals, lawful permanent residents of the United
States, or American Indians who have a right by statute to pass the
borders of, or enter into, the United States. In addition, I hereby
authorize exceptions to these restrictions for the following categories
of noncitizen non-LPRs: \32\
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\31\ 19 U.S.C. 1318(b)(1)(C) provides that ``[n]otwithstanding
any other provision of law, the Secretary of the Treasury, when
necessary to respond to a national emergency declared under the
National Emergencies Act (50 U.S.C. 1601 et seq.) or to a specific
threat to human life or national interests,'' is authorized to
``[t]ake any . . . action that may be necessary to respond directly
to the national emergency or specific threat.'' On March 1, 2003,
certain functions of the Secretary of the Treasury were transferred
to the Secretary of Homeland Security. See 6 U.S.C. 202(2), 203(1).
Under 6 U.S.C. 212(a)(1), authorities ``related to Customs revenue
functions'' were reserved to the Secretary of the Treasury. To the
extent that any authority under section 1318(b)(1) was reserved to
the Secretary of the Treasury, it has been delegated to the
Secretary of Homeland Security. See Treas. Dep't Order No. 100-16
(May 15, 2003), 68 FR 28322 (May 23, 2003). Additionally, 19 U.S.C.
1318(b)(2) provides that ``[n]otwithstanding any other provision of
law, the Commissioner of U.S. Customs and Border Protection, when
necessary to respond to a specific threat to human life or national
interests, is authorized to close temporarily any Customs office or
port of entry or take any other lesser action that may be necessary
to respond to the specific threat.'' Congress has vested in the
Secretary of Homeland Security the ``functions of all officers,
employees, and organizational units of the Department,'' including
the Commissioner of CBP. 6 U.S.C. 112(a)(3).
\32\ The exceptions to this temporary restriction are generally
aligned with those outlined in the Presidential Proclamation and
further described in the CDC Order, with modifications to account
for the unique nature of land border operations where advance
passenger information is largely not available.
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<bullet> Certain categories of persons on diplomatic or official
foreign government travel as specified in the CDC Order;
<bullet> persons under 18 years of age;
<bullet> certain participants in certain COVID-19 vaccine trials as
specified in the CDC Order;
<bullet> persons with medical contraindications to receiving a
COVID-19 vaccine as specified in the CDC Order;
<bullet> persons issued a humanitarian or emergency exception by
the Secretary of Homeland Security;
<bullet> persons with valid nonimmigrant visas (excluding B-1
[business] or B-2 [tourism] visas) who are citizens of a country with
limited COVID-19 vaccine availability, as specified in the CDC Order;
<bullet> members of the U.S. Armed Forces or their spouses or
children (under 18 years of age) as specified in the CDC Order; and,
<bullet> persons whose entry would be in the U.S. national
interest, as determined by the Secretary of Homeland Security.
In administering such exceptions, DHS will not require the Covered
Individual Attestation currently in use by CDC for noncitizens who are
nonimmigrants seeking to enter the United States by air travel, or
similar form, but DHS may, in its discretion, require any person
invoking an exception to provide proof of eligibility consistent with
documentation requirements in CDC's Technical Instructions.\33\
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\33\ CDC, Technical Instructions for Implementing Presidential
Proclamation Advancing the Safe Resumption of Global Travel During
the COVID-19 Pandemic and CDC's Order, <a href="https://www.cdc.gov/quarantine/order-safe-travel/technical-instructions.html">https://www.cdc.gov/quarantine/order-safe-travel/technical-instructions.html</a> (last
reviewed Nov. 30, 2021).
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This Notification does not apply to air or sea travel between the
United States and Canada. This Notification does apply to passenger/
freight rail, passenger ferry travel, and pleasure boat travel between
the United States and Canada. These restrictions are temporary in
nature and shall remain in effect until the date indicated on this
Notification, unless modified or rescinded at any point prior to that
date, including to conform these restrictions to any intervening
changes in the Presidential Proclamation and implementing CDC orders.
In conjunction with interagency partners, I will closely monitor the
effect of the requirements discussed herein, especially as they relate
to any potential impacts on the supply chain and will, as needed and
warranted, exercise my authority in support of the U.S. national
interest.
I intend for this Notification and the restrictions discussed
herein to be given effect to the fullest extent allowed by law; in the
event that a court of competent jurisdiction stays, enjoins, or sets
aside any aspect of this action, on its face or with respect to any
person, entity, or class thereof, any portion of this action not
determined by the court to be invalid or unenforceable should otherwise
remain in effect for the duration stated above.
This action is not a rule subject to notice and comment under the
Administrative Procedure Act (APA). It is exempt from notice and
comment requirements because it concerns ongoing discussions with
Canada and Mexico on how best to control COVID-19 transmission over our
shared borders and therefore directly ``involve[s] . . . a . . .
foreign affairs function of the United States.'' Even if this action
were subject to notice and comment, there is good cause to dispense
with prior public notice and the opportunity to comment. Given the
public health emergency caused by COVID-19, including the rapidly
evolving circumstances associated with elevated rates of infection due
to the Omicron variant, it would be impracticable and contrary to the
public health, and the public interest, to delay the issuance and
effective date of this action.
The CBP Commissioner is hereby directed to prepare and distribute
appropriate guidance to CBP personnel on the implementation of the
temporary measures set forth in this Notification. Further, the CBP
Commissioner may, on an individualized basis and for humanitarian or
emergency reasons or for other purposes in the national interest,
permit the processing of travelers to the United States who would
otherwise be subject to the restrictions announced in this
Notification.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2022-01402 Filed 1-21-22; 8:45 am]
BILLING CODE 9112-FP-P
</pre></body>
</html>Indexed from Federal Register on January 24, 2022.
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.