Notice2022-05687
Public Health Reassessment and Immediate Termination of Order Suspending the Right To Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists With Respect to Unaccompanied Noncitizen Children
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
March 17, 2022
Issuing agencies
Health and Human Services DepartmentCenters for Disease Control and Prevention
Abstract
The Centers for Disease Control and Prevention (CDC), located within the Department of Health and Human Services (HHS), is hereby terminating the Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists, issued on August 2, 2021 (August Order), and all related prior orders issued pursuant to the authorities in sections 362 and 365 of the Public Health Service (PHS) Act and the implementing regulation, to the extent they apply to Unaccompanied Noncitizen Children (UC).
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 52 (Thursday, March 17, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 52 (Thursday, March 17, 2022)]
[Notices]
[Pages 15243-15253]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-05687]
[[Page 15243]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Disease Control and Prevention
Public Health Reassessment and Immediate Termination of Order
Suspending the Right To Introduce Certain Persons From Countries Where
a Quarantinable Communicable Disease Exists With Respect to
Unaccompanied Noncitizen Children
AGENCY: Centers for Disease Control and Prevention (CDC), Department of
Health and Human Services (HHS).
ACTION: General notice.
-----------------------------------------------------------------------
SUMMARY: The Centers for Disease Control and Prevention (CDC), located
within the Department of Health and Human Services (HHS), is hereby
terminating the Order Suspending the Right to Introduce Certain Persons
from Countries Where a Quarantinable Communicable Disease Exists,
issued on August 2, 2021 (August Order), and all related prior orders
issued pursuant to the authorities in sections 362 and 365 of the
Public Health Service (PHS) Act and the implementing regulation, to the
extent they apply to Unaccompanied Noncitizen Children (UC).
DATES: This Order was implemented March 11, 2022.
FOR FURTHER INFORMATION CONTACT: Jennifer Buigut, Division of Global
Migration and Quarantine, National Center for Emerging and Zoonotic
Infectious Diseases, Centers for Disease Control and Prevention, 1600
Clifton Road NE, MS H16-4, Atlanta, GA 30329. Email:
<a href="/cdn-cgi/l/email-protection#1276757f63627d7e7b716b7d74747b7177527176713c757d64"><span class="__cf_email__" data-cfemail="debab9b3afaeb1b2b7bda7b1b8b8b7bdbb9ebdbabdf0b9b1a8">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
Coronavirus disease 2019 (COVID-19) is a quarantinable communicable
disease caused by the SARS-CoV-2 virus. As part of U.S. government
efforts to mitigate the introduction, transmission, and spread of
COVID-19, CDC issued the August Order, replacing a prior order issued
on October 13, 2020 (October Order) which continued a series of orders
issued pursuant to 42 U.S.C. 265, 268 and the implementing regulation
at 42 CFR 71.40, suspending the right to introduce certain persons into
the United States from countries or places where the quarantinable
communicable disease exists in order to protect the public health from
an increased risk of the introduction of COVID-19 (CDC Orders).
The CDC Orders issued under 42 U.S.C. 265, 268 and 42 CFR 71.40
were intended to reduce the risk of COVID-19 introduction,
transmission, and spread at POE and U.S. Border Patrol stations by
significantly reducing the number and density of covered noncitizens
held in these congregate settings and thereby reducing risks to U.S.
citizens and residents, Department of Homeland Security/Customs and
Border Patrol personnel and noncitizens at the facilities, and local
community healthcare systems. CDC has deemed the measures included in
the CDC Orders necessary for the protection of public health during the
ongoing COVID-19 pandemic.
The August Order continued a suspension of the right to introduce
``covered noncitizens,'' as defined below, into the United States along
the U.S. land and adjacent coastal borders. The August Order
specifically excepted UC and incorporated an exception for UC issued by
CDC on July 16, 2021 (July Exception). Based on the public health
landscape, the current status of the COVID-19 pandemic, the situation
in congregate settings where UC seeking to enter the United States are
processed and held, and the procedures in place for the processing of
UC in such congregate settings, CDC has determined that a suspension of
the right to introduce UC is not necessary to protect U.S. citizens,
U.S. nationals, lawful permanent residents, personnel and noncitizens
at the (POE) and U.S. Border Patrol stations, and destination
communities in the United States at this time. This termination as to
UC supersedes the July Exception incorporated in the August Order. The
present termination does not address the application of the August
Order to individuals in family units (FMU) or single adults (SA).
The August Order applied specifically to covered noncitizens,
defined as ``persons traveling from Canada or Mexico (regardless of
their country of origin) who would otherwise be introduced into a
congregate setting in a POE or U.S. Border Patrol station at or near
the U.S. land and adjacent coastal borders subject to certain
exceptions detailed below; this includes noncitizens who do not have
proper travel documents, noncitizens whose entry is otherwise contrary
to law, and noncitizens who are apprehended at or near the border
seeking to unlawfully enter the United States between POE.'' Three
groups typically make up covered noncitizens--single adults (SA),
individuals in family units (FMU), and unaccompanied noncitizen
children (UC). UC encountered in the United States were specifically
excepted from the August Order based on its explicit incorporation by
reference of CDC's July Exception of UC.
UC are generally treated differently than other individuals
apprehended at the border under ordinary immigration laws. When section
265 does not apply, UC generally are transferred to the care and
custody of HHS's Office of Refugee Resettlement (ORR) pursuant to the
Trafficking Victims Protection Reauthorization Act of 2008. ORR is able
to care for UC while implementing appropriate COVID-19 mitigation
measures, given ORR's robust network of care facilities that provide
testing and medical care, and DHS has already been excepting UC in
accordance with CDC's August Order. With CDC's assistance and guidance,
ORR also has implemented COVID-19 testing protocols for UC in its care
and continues to practice other mitigation measures to prevent and
curtail transmission of the SARS-CoV-2 virus among UC in its care.
In the August Order, CDC committed to reassessing the public health
circumstances necessitating the Order at least every 60 days by
reviewing the latest information regarding the status of the COVID-19
public health emergency and associated public health risks, including
migration patterns, sanitation concerns, and any improvement or
deterioration of conditions at the U.S. borders. Following a
Preliminary Injunction issued by the U.S. District Court for the
Northern District of Texas ordering that the July Exception for UC and
its incorporation into the August Order be enjoined, CDC determined
that it was necessary to conduct an immediate reassessment with respect
to UC. This reassessment takes into account the current status of the
pandemic.
Based on the reassessment, the CDC Director finds that there is no
longer a serious danger of the introduction, transmission, and spread
of COVID-19 into the United States as a result of entry of UC and that
a suspension of the introduction of UC is not required in the interest
of public health. The CDC Director has determined that suspension of
entry of UC is not necessary to protect U.S. citizens, U.S. nationals,
lawful permanent residents, personnel and noncitizens at POE and U.S.
Border Patrol stations, or destination communities in the United
States. In light of that determination, CDC is hereby terminating the
CDC Orders issued pursuant to 42 U.S.C. 265, 268 and 42 CFR 71.40 as
they apply to UC, effective immediately. The current 60-day review
process is scheduled to end on March 30, 2022, and CDC will conclude
its reassessment of whether
[[Page 15244]]
the Order remains necessary in whole or part to protect the public
health with respect to SA and FMU by that date.
Legal Authority
CDC is hereby immediately terminating the August Order and all
prior orders issued pursuant to sections 362 and 365 of the PHS Act (42
U.S.C. 265, 268) and the implementing regulation at 42 CFR 71.40 to the
extent they apply to UC.
Referenced Order
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-update.pdf">https://www.cdc.gov/coronavirus/2019-ncov/more/pdf/NoticeUnaccompaniedChildren-update.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 Reassessment and Immediate Termination of Order
Suspending the Right To Introduce Certain Persons From Countries Where
a Quarantinable Communicable Disease Exists With Respect to
Unaccompanied Noncitizen Children
Executive Summary
The Centers for Disease Control and Prevention (CDC), a component
of the U.S. Department of Health and Human Services (HHS), is hereby
terminating the Order Suspending the Right to Introduce Certain Persons
from Countries Where a Quarantinable Communicable Disease Exists,
issued on August 2, 2021 (August Order),\1\ and all related prior
orders issued pursuant to the authorities in sections 362 and 365 of
the Public Health Service (PHS) Act (42 U.S.C. 265, 268) and the
implementing regulation at 42 CFR 71.40 (CDC Orders),\2\ to the extent
that they apply to Unaccompanied Noncitizen Children (UC). The August
Order continued a suspension of the right to introduce ``covered
noncitizens,'' as defined in the Order,\3\ into the United States along
the U.S. land and adjacent coastal borders. The August Order
specifically excepted UC and incorporated an exception for UC issued by
CDC on July 16, 2021 (July Exception).\4\ The August Order states that
CDC will reassess at least every 60 days whether the Order remains
necessary to protect the public health. CDC was in the process of
assessing that question in light of the current public health
situation. However, in response to an order of the U.S. District Court
for the Northern District of Texas preliminarily enjoining the July
Exception and the relevant portion of the August Order based on
concerns about the adequacy of the CDC's explanation for those actions
and consistent with CDC's continuing review, CDC has reopened this
issue and reconsidered whether UC should be subject to the CDC Orders.
CDC hereby concludes that UC should not be subject to the CDC Orders
based on the current public health circumstances. Based on the public
health landscape, the current status of the COVID-19 pandemic, the
situation in congregate settings where UC seeking to enter the United
States are processed and held, and the procedures in place for the
processing of UC in such congregate settings, CDC has determined that a
suspension of the right to introduce UC is not necessary to protect
U.S. citizens, U.S. nationals, lawful permanent residents, personnel
and noncitizens at the ports of entry (POE) and U.S. Border Patrol
stations, and destination communities in the United States at this
time. This termination as to UC supersedes the July Exception
incorporated in the August Order. The present termination does not
address the application of the August Order to individuals in family
units (FMU) or single adults (SA).
---------------------------------------------------------------------------
\1\ Available at <a href="https://www.cdc.gov/coronavirus/2019-ncov/downloads/CDC-Order-Suspending-Right-to-Introduce-_Final_8-2-21.pdf">https://www.cdc.gov/coronavirus/2019-ncov/downloads/CDC-Order-Suspending-Right-to-Introduce-_Final_8-2-21.pdf</a>
(last visited Mar. 7, 2022); see also 86 FR 42828 (Aug. 5, 2021).
\2\ The ``CDC Orders'' issued pursuant to these legal
authorities are found at 85 FR 17060 (Mar. 26, 2020), 85 FR 22424
(Apr. 22, 2020), 85 FR 31503 (May 26, 2020), 85 FR 65806 (Oct. 16,
2020), and 86 FR 42828 (Aug. 5, 2021) (fully incorporating by
reference 86 FR 38717 (July 22, 2021), see 86 FR 42828, 42829 at
note 3).
\3\ See infra 1.
\4\ Public Health Determination Regarding an Exception for
Unaccompanied Noncitizen Children from Order Suspending the Right to
Introduce Certain Persons from Countries Where a Quarantinable
Communicable Disease Exists, Centers for Disease Control and
Prevention, <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> (July 16, 2021); 86 FR 38717 (July
22, 2021); see 86 FR 42828, 42829 at note 1 (Aug. 5, 2021) (which
fully incorporated by reference the July Exception relating to UC).
---------------------------------------------------------------------------
Outline of Reassessment and Order
I. Background
A. Public Health Landscape
B. Current Status of the COVID-19 Pandemic
1. Community COVID-19 Levels
2. Information Specific to UC
II. Public Health Reassessment
A. Changing Public Health Conditions
B. Public Health Factors Specifically Relevant to UC Population
III. Legal Considerations
A. Concerns Raised by the District Court
B. Absence of Reliance Interests
C. Timing Considerations
D. Basis for Termination With Respect to UC Under Sections 362
and 365 of the PHS Act and 42 CFR 71.40
IV. Issuance and Implementation of the Termination
A. Termination as to UC
B. APA Review
I. Background
Coronavirus disease 2019 (COVID-19) is a quarantinable communicable
disease \5\ caused by the SARS-CoV-2 virus. As part of U.S. Government
efforts to mitigate the introduction, transmission, and spread of
COVID-19, CDC issued the August Order,\6\ replacing a prior order
issued on October 13, 2020 (October Order) which continued a series of
orders issued pursuant to 42 U.S.C. 265, 268 and the implementing
regulation at 42 CFR 71.40,\7\ suspending the right to introduce \8\
certain persons into the United States from countries or places where
the quarantinable communicable disease exists in order to protect the
public health from an increased risk of the introduction of COVID-19
(CDC
[[Page 15245]]
Orders).\9\ The August Order applied specifically to covered
noncitizens, defined as ``persons traveling from Canada or Mexico
(regardless of their country of origin) who would otherwise be
introduced into a congregate setting in a POE or U.S. Border Patrol
station \10\ at or near the U.S. land and adjacent coastal borders
subject to certain exceptions detailed below; this includes noncitizens
who do not have proper travel documents, noncitizens whose entry is
otherwise contrary to law, and noncitizens who are apprehended at or
near the border seeking to unlawfully enter the United States between
POE.'' \11\
---------------------------------------------------------------------------
\5\ Quarantinable communicable diseases are any of the
communicable diseases listed in Executive Order 13295, as provided
under section 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), influenza caused by
novel or reemergent influenza viruses that are causing, or have the
potential to cause, a pandemic, and measles. 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), 86 FR 52591 (Sep. 22, 2021).
\6\ See supra note 1.
\7\ 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 (March Order),
which was subsequently extended and amended. 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).
\8\ 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).
\9\ See supra note 2.
\10\ POE and U.S. Border Patrol stations are operated by U.S.
Customs and Border Protection (CBP), an agency within Department of
Homeland Security (DHS).
\11\ 86 FR 42828, 42841.
---------------------------------------------------------------------------
Three groups typically make up covered noncitizens--single adults
(SA),\12\ individuals in family units (FMU),\13\ and unaccompanied
noncitizen children (UC).\14\ UC encountered in the United States were
specifically excepted from the August Order \15\ based on its explicit
incorporation by reference of CDC's July Exception of UC.\16\ The
August Order and July Exception distinguished the immigration
processing available to SA and FMU from that available to UC.\17\ While
all three groups are processed by U.S. Customs and Border Protection
(CBP), a component of the Department of Homeland Security (DHS),
following that initial intake, UC are referred to HHS' Office of
Refugee Resettlement (ORR) for care. At both the CBP and ORR stages, UC
receive special attention.
---------------------------------------------------------------------------
\12\ A single adult (SA) is any noncitizen adult 18 years or
older who is not an individual in a ``family unit.'' 86 FR 42828,
42830 at note 13.
\13\ An individual in a family unit (FMU) includes any
individual in a group of two or more noncitizens consisting of a
minor or minors accompanied by their adult parent(s) or legal
guardian(s). Id. at note 14.
\14\ CDC understands UC to be a class of individuals 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 Office of Refugee Resettlement custody, were DHS to make the
necessary immigration determinations under Title 8 of the U.S. Code.
86 FR 38717, 38718 at note 4.
\15\ 86 FR 42828, 42829 at note 3.
\16\ See supra note 4.
\17\ See 86 FR 42828, 42835-37 (describing the processing of
noncitizen SA and FMU by DHS components, CBP and ICE, under both
regular Title 8 immigration and under an order pursuant to 42 U.S.C.
265).
---------------------------------------------------------------------------
The series of CDC Orders issued under 42 U.S.C. 265, 268 and 42 CFR
71.40 were intended to reduce the risk of COVID-19 introduction,
transmission, and spread at POE and U.S. Border Patrol stations by
significantly reducing the number and density of covered noncitizens
held in these congregate settings and thereby reducing risks to U.S.
citizens, U.S. nationals, lawful permanent residents, DHS/CBP personnel
and noncitizens at the facilities, and local community healthcare
systems. CDC has deemed the measures included in the CDC Orders
necessary for the protection of public health during the ongoing COVID-
19 pandemic.
In the August Order, CDC committed to reassessing the public health
circumstances necessitating the Order at least every 60 days by
reviewing the latest information regarding the status of the COVID-19
public health emergency and associated public health risks, including
migration patterns, sanitation concerns, and any improvement or
deterioration of conditions at the U.S. borders.\18\ Following a
Preliminary Injunction issued by the U.S. District Court for the
Northern District of Texas ordering that the July Exception for UC and
its incorporation into the August Order be enjoined,\19\ CDC determined
that it was necessary to conduct an immediate reassessment with respect
to UC. This reassessment takes into account the current status of the
pandemic. For example, CDC recently released its COVID-19 Community
Levels framework, which allows communities and individuals to make
decisions and reduce COVID-19 mitigation measures as allowed by local
context and unique needs.\20\ This was followed by an updated National
COVID-19 Preparedness Plan, which lays out the roadmap to help the
nation continue to fight COVID-19 in the future, while also allowing
resumption of more normal routines.\21\
---------------------------------------------------------------------------
\18\ 86 FR 42828, 42841.
\19\ See infra II.B.
\20\ COVID-19 Community Levels, Centers for Disease Control and
Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/science/community-levels.html">https://www.cdc.gov/coronavirus/2019-ncov/science/community-levels.html</a> (updated Mar. 10, 2022).
\21\ National COVID-19 Preparedness Plan--March 2022, available
at <a href="https://www.whitehouse.gov/wp-content/uploads/2022/03/NAT-COVID-19-PREPAREDNESS-PLAN.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/03/NAT-COVID-19-PREPAREDNESS-PLAN.pdf</a> (last visited Mar. 9, 2022).
---------------------------------------------------------------------------
Based on the reassessment below, the CDC Director finds that there
is no longer a serious danger of the introduction, transmission, and
spread of COVID-19 into the United States as a result of entry of UC
and that a suspension of the introduction of UC is not required in the
interest of public health. The CDC Director has determined that
suspension of entry of UC is not necessary to protect U.S. citizens,
U.S. nationals, lawful permanent residents, personnel and noncitizens
at POE and U.S. Border Patrol stations, or destination communities in
the United States. In light of that determination, and as described
below, CDC is hereby terminating the CDC Orders issued pursuant to 42
U.S.C. 265, 268 and 42 CFR 71.40 as they apply to UC, effective
immediately.
A. Public Health Landscape
Since late 2019, SARS-CoV-2, the virus that causes COVID-19, has
spread throughout the world, resulting in a pandemic. Since the
beginning of the pandemic, the U.S. Government response has focused on
taking actions and providing guidance based on the best available
scientific information. As the waves of the pandemic have surged and
ebbed, so too have actions taken in response to the pandemic. Earlier
phases of the pandemic required extraordinary actions by the U.S.
Government and society at large. However, epidemiologic data,
scientific knowledge, and the availability of public health mitigation
measures, vaccines, and therapeutics have permitted many of those early
actions to be pulled back in favor of more nuanced, targeted, and
narrowly-tailored guidance that provides a less restrictive means to
prevent and control the SARS-CoV-2 virus and COVID-19.
As of March 11, 2022, there have been over 450 million confirmed
cases of COVID-19 globally, resulting in over six million deaths.\22\
The United States has reported over 79 million cases resulting in over
960,000 deaths due to the disease \23\ and is currently averaging
around 49,000 new cases of COVID-19 a day as of March 11, 2022.\24\
---------------------------------------------------------------------------
\22\ Coronavirus disease (COVID-19) pandemic, World Health
Organization, <a href="https://covid19.who.int/">https://covid19.who.int/</a> (last visited Mar. 11, 2022).
\23\ COVID Data Tracker, Centers for Disease Control and
Prevention, <a href="https://covid.cdc.gov/covid-data-tracker/#datatracker-home">https://covid.cdc.gov/covid-data-tracker/#datatracker-home</a> (last visited Mar. 11, 2022).
\24\ United States COVID-19 Cases, Deaths, and Laboratory
Testing (NAATs) by State, Territory, and Jurisdiction, Centers for
Disease Control and Prevention, <a href="https://covid.cdc.gov/covid-data-tracker/#cases_community">https://covid.cdc.gov/covid-data-tracker/#cases_community</a> (last visited Mar. 11, 2022).
---------------------------------------------------------------------------
B. Current Status of the COVID-19 Pandemic
The highly infectious SARS-CoV-2 variant B.1.1.529 (Omicron) is
responsible for the currently receding wave of the pandemic. The
Omicron variant resulted in an extraordinary and unparalleled increase
in COVID-19 cases around the world.\25\ The United
[[Page 15246]]
States recorded its highest seven-day moving average number of cases on
January 15, 2022.\26\ Following this unprecedented peak, the number of
COVID-19 cases in the United States began to rapidly decrease, falling
by 95% as of March 9, 2022.\27\ After a brief period of continued
increases,\28\ deaths and hospitalizations also reversed course and
began a swift descent.\29\ These welcomed changes were due, in part, to
widespread population immunity \30\ and a generally lower overall risk
of severe disease and are responsible for allowing the United States to
return to more normal routines safely.\31\
---------------------------------------------------------------------------
\25\ Omicron was first reported to the World Health Organization
(WHO) by South Africa on November 24, 2021, and on November 26,
2021, WHO designated it a Variant of Concern (VOC). On November 30,
2021, the U.S. also decided to classify Omicron as a VOC. This
decision was based on a number of factors, including detection of
cases attributed to Omicron in multiple countries, even among
persons without travel history, transmission and replacement of
Delta as the predominant variant in South Africa, changes in the
spike protein of the virus, and concerns about potential decreased
effectiveness of vaccination and treatments.
\26\ See Trends in Number of COVID-19 Cases and Deaths in the
U.S. Reported to CDC, by State/Territory, Centers for Disease
Control and Prevention, <a href="https://covid.cdc.gov/covid-data-tracker/#trends_dailycases">https://covid.cdc.gov/covid-data-tracker/#trends_dailycases</a>, citing a seven-day moving average of 809,202
cases on January 15, 2022 (last updated Mar. 9, 2022).
\27\ Id. (noting a peak of 809,204 seven-day moving average
number of cases to 40,433 seven-day moving average number of cases
on March 7, 2022).
\28\ COVID Data Tracker Weekly Review: Stay Up to Date--
Interpretive Summary for Jan. 28, 2022, Centers for Disease Control
and Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/01282022.html">https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/01282022.html</a> (Jan. 28, 2022).
\29\ See New Admissions of Patients with Confirmed COVID-19,
United States, Centers for Disease Control and Prevention, <a href="https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions">https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions</a> (last
updated Mar. 10, 2022); see also supra note 25.
\30\ In addition to vaccine-induced immunity, studies have
consistently shown that infection with SARS-CoV-2 lowers an
individual's risk of subsequent infection and an even lower risk of
hospitalization and death. National estimates of both vaccine- and
infection-induced antibody seroprevalence have been measured among
blood donors; as of December 2021 these measures demonstrated 94.7%
of persons 16 years and older showed antibody seroprevalence for
COVID-19. Science Brief: Indicators for Monitoring COVID-19
Community Levels and Making Public Health Recommendations, Centers
for Disease Control and Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/indicators-monitoring-community-levels.html">https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/indicators-monitoring-community-levels.html</a> (updated Mar. 4, 2022); Nationwide COVID-19 Infection-
and Vaccination-Induced Antibody Seroprevalence (Blood donations),
Centers for Disease Control and Prevention, <a href="https://covid.cdc.gov/covid-data-tracker/#nationwide-blood-donor-seroprevalence">https://covid.cdc.gov/covid-data-tracker/#nationwide-blood-donor-seroprevalence</a> (last
updated Feb. 18, 2022).
\31\ Transcript for CDC Media Telebriefing: Update on COVID-19,
Centers for Disease Control and Prevention, <a href="https://www.cdc.gov/media/releases/2022/t0225-covid-19-update.html">https://www.cdc.gov/media/releases/2022/t0225-covid-19-update.html</a> (Feb. 25, 2022).
COVID-19 vaccines are highly effective against severe illness and
death. Widespread uptake of these vaccines, coupled with higher
rates of infection-induced immunity at the population level, as well
as the broad availability of mitigation measures and effective
therapeutics have moved the pandemic to a different phase. See also
State of the Union Address, <a href="https://www.whitehouse.gov/state-of-the-union-2022/_">https://www.whitehouse.gov/state-of-the-union-2022/_</a> (Mar. 1, 2022).
---------------------------------------------------------------------------
1. Community COVID-19 Levels
During the first four waves of the pandemic, CDC relied on a
particular formula to calculate community transmission levels and
update COVID-19 prevention strategies accordingly.\32\ These indicators
reflected the goal of limiting transmission in anticipation of vaccines
becoming available.\33\ The CDC Director examined these indicators in
conducting the public health assessment for the August Order.\34\
---------------------------------------------------------------------------
\32\ In September 2020, CDC released the Indicators of Community
Transmission framework, which incorporated two metrics to define
community transmission: Total new cases per 100,000 persons in the
past seven days, and percentage of Nucleic Acid Amplification Test
results that are positive during the past seven days. CDC also
encouraged local decision-makers to also assess the following
factors, in addition to levels of SARS-CoV-2, to inform the need for
layered prevention strategies across a range of settings: Health
system capacity, vaccination coverage, capacity for early detection
of increases in COVID-19 cases, and populations at risk for severe
outcomes from COVID-19. See Christie A, Brooks JT, Hicks LA, et al.
Guidance for Implementing COVID-19 Prevention Strategies in the
Context of Varying Community Transmission Levels and Vaccination
Coverage. MMWR Morb Mortal Wkly Rep. ePub: 27 July 2021. DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm7030e2">http://dx.doi.org/10.15585/mmwr.mm7030e2</a>.
\33\ Id.
\34\ Supra note 1.
---------------------------------------------------------------------------
In February 2022, given increased levels of population immunity,
available therapies, and overall milder disease associated with the
Omicron variant,\35\ CDC released a new framework, ``COVID-19 Community
Levels,'' reflecting a shift in focus from eliminating SARS-CoV-2
transmission toward disease control and infrastructure protection.\36\
This new framework examines three currently relevant metrics: New
COVID-19 hospital admissions per 100,000 population in the past seven
days, the percent of staffed inpatient beds occupied by patients with
COVID-19, and total new COVID-19 cases per 100,000 population in the
past seven days.\37\ CDC determined that data on disease severity and
healthcare system strain complement case rates, and these data together
are more informative for public health recommendations for individual,
organizational, and jurisdictional decisions than data on community
transmission rates alone.\38\ This comprehensive approach to assessing
COVID-19 Community Levels can inform decisions about layered COVID-19
prevention strategies, including vaccination and masking to reduce
medically significant disease and limit strain on the healthcare system
and other societal functions.\39\
---------------------------------------------------------------------------
\35\ Supra note 31.
\36\ Indicators for Monitoring COVID-19 Community Levels and
Implementing Prevention Strategies, Centers for Disease Control and
Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/downloads/science/Scientific-Rationale-summary_COVID-19-Community-Levels_2022.02.23.pptx">https://www.cdc.gov/coronavirus/2019-ncov/downloads/science/Scientific-Rationale-summary_COVID-19-Community-Levels_2022.02.23.pptx</a> (Feb. 23, 2022).
\37\ New COVID-19 admissions and the percent of staffed
inpatient beds occupied represent the current potential for strain
on the health system, while data on new cases acts as an early
warning indicator of potential increases in health system strain in
the event of a COVID-19 surge. Community vaccination coverage and
other local information, like early alerts from surveillance, such
as through wastewater or the number of emergency department visits
for COVID-19, when available, can also inform decision making for
health officials and individuals. Supra note 21.
\38\ Supra note 31.
\39\ Id.
---------------------------------------------------------------------------
Using these data, the COVID-19 Community Levels for each county are
classified as low, medium, or high. CDC recommends using county COVID-
19 Community Levels to help determine which mitigation measures, such
as screening, testing, and mask use, should be implemented within a
community.\40\ As of March 10, 2022, 72.7% of U.S. counties are
classified at the low COVID-19 Community Level, 21.2% of U.S. counties
are classified at the medium COVID-19 Community Level, and 6% of U.S.
counties are classified at the high COVID-19 Community Level.\41\
Furthermore, 82.8% of the U.S. population lives in counties classified
as ``low,'' 15% live in counties classified as ``medium,'' and 2.2%
live in counties classified as ``high.'' \42\
---------------------------------------------------------------------------
\40\ See supra note 21.
\41\ COVID-19 by County, Centers for Disease Control and
Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/your-health/covid-by-county.html">https://www.cdc.gov/coronavirus/2019-ncov/your-health/covid-by-county.html</a> (last updated Mar. 10, 2022). Furthermore,
82.8% of the U.S. population lives in counties classified as
``low,'' 15% live in counties classified as ``medium,'' and 2.2%
live in counties classified as ``high.''
\42\ Per internal CDC calculations.
---------------------------------------------------------------------------
2. Information Specific to UC
Since the beginning of the pandemic, CBP has maintained myriad
COVID-19 mitigation efforts in order to protect noncitizens and its
workforce.\43\ The
[[Page 15247]]
DHS Office of the Chief Medical Officer has worked with local community
partners whose work is critical to moving individuals safely out of CBP
custody and through the appropriate immigration pathway. Through these
partnerships, DHS has supported state, local, tribal, and territorial
partners and NGOs in developing robust COVID-19 testing and quarantine
programs along the Southwest Border. In addition, vaccine uptake among
the CBP workforce has reached approximately 88% among personnel on the
U.S.-Mexico border.
---------------------------------------------------------------------------
\43\ These mitigation efforts include installing plexiglass
dividers in facilities, enhancing ventilation systems, adhering to
CDC cleaning and disinfection guidance, and providing masks to
migrants, as well as providing PPE to CBP personnel. These measures
generally follow the infection prevention control referred to as the
hierarchy of controls. See Hierarchy of Controls, Centers for
Disease Control and Prevention, available at <a href="https://www.cdc.gov/niosh/topics/hierarchy/default.html">https://www.cdc.gov/niosh/topics/hierarchy/default.html</a> (last visited Mar. 9, 2022). The
hierarchy of controls is used as a means of determining how to
implement feasible and effective control solutions. The hierarchy is
outlined as: (1) Elimination (physically remove the hazard); (2)
Substitution (replace the hazard); (3) Engineering Controls (isolate
people from the hazard); (4) Administrative Controls (change the way
people work); and (5) PPE (protect people with Personal Protective
Equipment). CBP also continues to update the CBP Job Hazard Analysis
and the CBP COVID-19 toolkit based on the latest relevant public
health guidance.
---------------------------------------------------------------------------
CDC understands that in the months between the issuance of the
August Order and now, CBP has implemented a robust set of COVID-19
mitigation protocols that have substantially reduced the potential for
COVID-19 spread among UC in CBP and ORR facilities. For many months, UC
had been tested as they were leaving CBP facilities, prior to transfer
to large ORR facilities. On August 25, 2021, CBP began testing UC
during CBP's intake process as well, prior to placing UC in congregate
settings. Intake testing of UC started with those encountered in the
Rio Grande Valley (RGV) Sector of the U.S. Border Patrol--the Sector
that has encountered more than 54% percent of UC over the past 12
months. This model has subsequently been expanded to other high-
encounter Border Patrol Sectors, including Tucson (January 26, 2022),
El Paso (February 3, 2022), and Del Rio (February 3, 2022). Taken
together, these Sectors account for over 87% of UC encounters over the
past 12 months--indicating that the large majority of UC are now going
through this intake processing protocol.
Pursuant to these protocols, UC encountered by Border Patrol agents
are tested for COVID-19 in a sheltered, open air location during intake
processing prior to entering congregate settings, thus ensuring the
ability to segregate UC by test results, provide appropriate care to UC
who have tested positive, and minimize further spread. UC that test
positive for COVID-19 are cohorted together and kept physically
separate from UC who test negative. UC who test positive for COVID-19
go through a streamlined designation and referral process for ORR
placement that is substantially faster than the process for other UC,
generally resulting in transfers to ORR within 8 to 12 hours of
encounter. UC who test positive are transported together (and
separately from other UC) to designated ORR facilities that are
designed to provide robust care for COVID-19 positive children and to
minimize the chance of transmission. UC who test negative go through
the normal processing, as applied to UC, and are tested again when they
are discharged from CBP facilities prior to transport to large ORR
facilities. UC who test positive at this second stage are routed to
designated ORR facilities to minimize the potential for COVID-19
spread. All UC are subject to masking requirements while in CBP
custody.
Since the inception of these intake processing protocols, CBP has
tested more than 45,000 UC with an overall positivity rate of 10%.
Consistent with the decline in COVID-19 positivity rates more
generally, the UC overall positivity rate has been declining. During
the first week of March 2022, the overall positivity rate for UC in CBP
custody was around 6%, down from a high of nearly 20% in early February
2022.
CBP's intake processing protocols have also led to a significant
decrease in COVID-19 positivity rates for UC in ORR care. Following the
start of COVID-19 testing for UC as part of the CBP intake process in
August, there was a significant decrease in the proportion of children
referred to ORR from the RGV Sector testing positive for COVID-19
within the first four days of ORR custody, as compared to the pre-
testing period. As of March 5, 2022, COVID-19 positivity rates in ORR
shelter facilities ranged from 4% to 15%--a number that includes those
in facilities designed specifically to house COVID-positive UC. Once UC
are transferred to ORR care, ORR has in place a range of other
mitigation measures, as detailed below, to 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. Due to
operational and facility constraints, CBP reports that it is not able
to replicate this robust COVID-19 testing and isolation program for SA
and FMU in its custody.
II. Public Health Reassessment
A. Changing Public Health Conditions
CDC continually reassesses the development of the COVID-19 pandemic
and the need for continued measures under 42 U.S.C. 265, 268 and 42 CFR
71.40, the authorities that support the CDC Orders.\44\ The public
health reassessment for UC described herein is based upon the most
recent science and data available to CDC. Based upon these data, CDC
has determined that while the use of the CDC Orders to reduce the
numbers of noncitizens held in congregate settings in POEs and Border
Patrol stations has been part of the layered COVID-19 mitigation
measures over the last two years, less restrictive measures than those
outlined in prior CDC Orders are now available with respect to UC to
mitigate the introduction, transmission, and spread of COVID-19. While
the CDC Orders provided an important COVID-19 mitigation measure during
certain phases of the pandemic by reducing the number of noncitizens
held in congregate settings, other public health measures such as
workforce testing, widespread vaccination, variant action plans, and
mitigation measures specifically available for the UC population, are
now available to provide necessary public health protection for
noncitizens, Americans, and the DHS workforce.
---------------------------------------------------------------------------
\44\ See supra note 9.
---------------------------------------------------------------------------
CDC believes that the widespread availability of tests for the
general public, in addition to other methods of surveillance, will
permit the workforce to rapidly institute necessary mitigation measures
in the event that cases of COVID-19 are detected. At the same time,
vaccination rates are increasing both at home and abroad. Vaccination
among the American public and the DHS workforce in particular has been
largely successful and, as stated in the August Order, widespread
vaccination of federal employees and personnel in congregate settings
at POE and U.S. Border Patrol stations is a critical step toward the
normalization of border operations.\45\ Since August 2021, vaccination
rates in the countries of origin for the current majority of UC have
also increased dramatically.\46\ Such increased global vaccination
rates, as well as higher rates of infection-induced immunity globally,
provide additional layers of protection. As a public health matter, CDC
strongly recommends that all individuals,
[[Page 15248]]
including noncitizens, receive a COVID-19 vaccine. This aligns with
CDC's emphasis on global vaccination. Even if full vaccination cannot
be assured, CDC believes vaccination of as many people as possible
provides some level of protection against severe illness and
hospitalization, thereby protecting citizens, noncitizens and the U.S.
healthcare system.
---------------------------------------------------------------------------
\45\ CBP most recently reported vaccination rates between 75%
and 91% among its U.S. Border Patrol and Office of Field Operations
personnel.
\46\ El Salvador, Guatemala, and Honduras constitute the top
three countries of origin for UC. Rates of vaccination for each
country are as follows: El Salvador 65% fully vaccinated, 4.8% only
partly vaccinated; Guatemala: 31% fully vaccinated, 8.5% only partly
vaccinated; Honduras: 45% fully vaccinated, 8.5% only partly
vaccinated. Coronavirus (COVID-19) Vaccinations, Our World in Data,
<a href="https://ourworldindata.org/covid-vaccinations">https://ourworldindata.org/covid-vaccinations</a> (last visited Mar. 11,
2022).
---------------------------------------------------------------------------
The August Order also highlighted the threat posed by emerging
variants and the potential for a future vaccine-resistant variant,
either of which could negatively impact U.S. communities and local
healthcare resources.\47\ Based in part on these threats, CDC concluded
at that time that an Order under 42 U.S.C. 265 should remain in place,
pending further improvements in the public health situation, and
subject to continual assessment.\48\ Since the August Order, public
health officials have learned a great deal about variants and how best
to respond to them. In response to Omicron, the U.S. Government
developed a comprehensive plan for monitoring COVID-19, swiftly
adapting public health tools to combat a new variant, and deploying
emergency resources to help communities.\49\ This plan includes a
commitment to ensuring that variant surveillance, vaccines, tests, and
treatments can be updated and deployed quickly.\50\
---------------------------------------------------------------------------
\47\ 86 FR 42828, 42837.
\48\ Id.
\49\ See supra note 22.
\50\ Id.
---------------------------------------------------------------------------
As noted above, a significant majority of the U.S. population
currently lives in an area classified as having a ``low'' COVID-19
Community Level,\51\ meaning most of the population can operate under
more relaxed COVID-19 mitigation strategies.\52\ Noteworthy for
purposes of this reassessment, as of March 10, 2022, of the 24 U.S.
counties along the U.S.-Mexico border, 91% of counties on the Southwest
Border are now classified as having a ``low''or ``medium'' COVID-19
Community Level.\53\
---------------------------------------------------------------------------
\51\ See supra note 42.
\52\ See supra note 31.
\53\ See supra note 41 (noting 54% (n=13) of counties along the
U.S.-Mexico border are considered ``Low'' (San Diego County, CA;
Imperial County, CA; Luna, NM; Dona Ana County, NM; Otero County,
NM; Eddy County, NM; Lea County, NM; Presidio County, TX; Brewster
County, TX; Terrell County, TX; Webb County, TX; Zapata County, TX;
Cameron County, TX); 37% of counties (n=9) along the U.S.-Mexico
border are classified as having COVID-19 community levels '': Pima
County, AZ, Santa Cruz County, AZ; Cochise County, AZ; El Paso
County, TX; Hudspeth County, TX; Val Verde County, TX; Kinney
County, TX; Maverick County, TX; and Starr County, TX); and 8% of
counties (n=2) along the U.S.-Mexico border are classified as having
COVID-19 community levels: Yuma, County, AZ and Hidalgo County, TX).
---------------------------------------------------------------------------
B. Public Health Factors Specifically Relevant to UC Population
For all the reasons set forth above, it is CDC's assessment that
there is no longer a public health rationale to apply to UC the August
Order and all related prior orders issued pursuant to 42 U.S.C. 265,
268 and 42 CFR 71.40. Moreover, as explained in the July Exception, UC
are less likely than FMU and SA to introduce COVID-19.\54\ In addition,
UC as a population are subject to unique care within CBP and ORR
facilities.\55\ These facilities are able to provide robust mitigation
measures that have proven to be effective in managing COVID-19 and
minimizing the risk of spread. These reasons serve as an additional
basis to those outlined herein for immediately terminating the August
Order and all prior Orders as to UC.
---------------------------------------------------------------------------
\54\ 86 FR 38717 (July 22, 2021).
\55\ UC not subject to an order under 42 U.S.C. 265 are
generally processed under immigration processes under Title 8 of the
U.S. Code and referred from CBP to ORR for care and custody,
according to the usual legal framework governing such referrals.
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. At these facilities,
case managers work to identify and ultimately place UC with vetted
sponsors (usually family members within the United States). 86 Fed.
Red. 38717, 38719 (July 22, 2020).
---------------------------------------------------------------------------
Following the temporary exception of UC from expulsion in January
2021, CDC formally excepted UC from the then-in-place October 2020
Order in July 2021. The July Exception was based on a public health
assessment of the specific treatment of UC and the care available to
them through ORR and was fully incorporated by reference into CDC's
subsequent August Order.\56\
---------------------------------------------------------------------------
\56\ See supra at note 1.
---------------------------------------------------------------------------
On March 4, 2022, the U.S. District Court for the Northern District
of Texas granted a motion for Preliminary Injunction brought by the
State of Texas and ordered that the July Exception for UC and its
incorporation into the August Order be enjoined, with the injunction
stayed through Friday, March 11, 2022. Even prior to that court order,
CDC has been reviewing whether the August Order should remain in place
as part of its regular public health reassessment every 60 days.
Although CDC continues to complete the next regularly scheduled
reassessment, CDC accelerated its ongoing and review determined an
immediate completion of the assessment of the current public health
situation with regard to UC was necessary due to the impending
effective date of the injunction. Based on that reassessment, and after
carefully considering the issues raised in the court's order, CDC has
determined that the current public health situation does not support
the application of the August Order to UC. Per the terms of 42 U.S.C.
265 itself, this lack of public health justification means the
suspension of the right to introduce UC is not an available measure. In
addition, the COVID-19 public health mitigation measures already in
place for UC described herein reinforce CDC's determination that the
August Order and all related prior orders issued pursuant to 42 U.S.C.
265, 268 and 42 CFR 71.40 should be terminated as to UC.
Following the temporary exception of UC from the October Order in
January 2021, the United States experienced an increase in the number
of UC arriving daily at the Southwest Border. In response, HHS and ORR,
in conjunction with the Federal Emergency Management Agency (FEMA) and
with the assistance of the Department of Defense, greatly expanded the
capacity for intake and processing of UC. At its height, ORR had
capacity of over 30,000 beds \57\ and nearly 23,000 children \58\ were
in its care. Currently, ORR has a capacity of nearly 14,000 beds and
fewer than 10,000 children are in ORR care as of March 9, 2022.\59\ ORR
has successfully processed and discharged over 159,000 UC since January
2021.\60\ The successful efforts to expand capacity for UC have
resulted in sufficient capacity at ORR sites--both along the border and
in the interior--and significantly reduced the length of time that UC
remain in CBP custody. As of March 11, 2022, the average time a UC
remained in CBP custody before transferring to ORR custody was 23
hours, and no UC have been in CBP custody for over 72 hours.\61\ This
represents a substantial improvement from early 2021.\62\ 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.
---------------------------------------------------------------------------
\57\ Per May 2021 monthly data from ORR.
\58\ Per April 2021 monthly data from ORR.
\59\ Per data from ORR.
\60\ Id. From January 2021 through February 2022, 15,492 UC have
been discharged from ORR care.
\61\ As reported by ORR.
\62\ 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.
---------------------------------------------------------------------------
With CDC's assistance and guidance, ORR also has implemented COVID-
19 testing protocols for UC in its care and
[[Page 15249]]
continues to practice other mitigation measures to prevent and curtail
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 a CDC recommendation, ORR conducts serial
testing of staff, as feasible, to allow early detection of a possible
outbreak.\63\ ORR contract and grantee staff working in facilities
serving UC are encouraged to receive the COVID-19 vaccine.\64\ As
advised by CDC, ORR also 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 the UC being discharged
to vetted sponsors in U.S. communities.
---------------------------------------------------------------------------
\63\ 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.
\64\ 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 ORR facilities described
above, CDC provided updated recommendations to ORR regarding the
vaccination of UC ages 5 and older.\65\ ORR subsequently approved the
administration of COVID-19 vaccine for age-eligible children. Under ORR
care, children ages 5 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 98% are age-eligible for vaccination
and, as of March 8, 2022, ORR has administered at least one dose of the
COVID-19 vaccine to 62,644 UC and a second dose to 15,994, with a
refusal rate under 1%.\66\ CDC considers these vaccination efforts to
be a critical risk reduction measure that supports excepting UC from
the August Order.
---------------------------------------------------------------------------
\65\ Field Guidance #17--COVID-19 Vaccination of Unaccompanied
Children (UC) in ORR Care, Internal Document (CDC memo to ORR,
revised Nov. 8, 2021).
\66\ Per data reported by ORR.
---------------------------------------------------------------------------
Although 20,682 UC total have tested positive for COVID-19 while at
ORR shelters during the period of March 24, 2020 to March 3, 2022,
20,304 of those UC testing positive have successfully completed medical
isolation, with few requiring medical treatment. Similarly, 13,148
cumulative COVID-19 cases have been reported from Emergency Intake
Sites (EIS) as of March 2, 2022; however, only approximately 37 of the
UC in this EIS group have required hospitalization.\67\
---------------------------------------------------------------------------
\67\ As reported by ORR.
---------------------------------------------------------------------------
These numbers indicate that the risk of overburdening the local
healthcare systems with 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 that include vaccination for personnel and
eligible UC, there is very low likelihood that processing UC in
accordance with existing Title 8 immigration procedures will result in
undue strain on the U.S. healthcare system or healthcare resources.
Moreover, UC released to a vetted sponsor do not pose a significant
level of risk for COVID-19 spread into the community because they are
released after having undergone testing, quarantine or isolation, and
vaccination when possible. UC sponsors also are provided with
appropriate medical and public health direction.
Based on the public health reassessment set forth above, as well as
the successful COVID-19 mitigation measures that were and continue to
be in place for UC, there is no public health basis to resume the
suspension of introduction of UC. Resuming the suspension of
introduction of UC would not significantly decrease the risk of the
introduction, transmission, or spread of COVID-19 at POE or Border
Patrol stations. Nor does the introduction of UC into the United States
pose a serious danger of the introduction of COVID-19 such that
applying the August Order to UC is required in the interest of the
public health.
III. Legal Considerations
A. Concerns Raised by the District Court
In enjoining CDC from enforcing the exception for UC set forth in
the July Exception and August Order, the court in Texas v. Biden found
that the July Exception and August Order likely were arbitrary or
capricious in violation of the Administrative Procedure Act (APA) for
several reasons.\68\ CDC takes the court's concerns seriously and has
considered each of them in issuing this Order. First, the court stated
that ``[t]he record before the Court demonstrates that nothing changed
between the October 2020 Order, the July 2021 [Order], and the August
2021 Order. The COVID-19 virus (still) remains a threat.'' \69\
Regardless of the public health conditions leading up to the July
Exception and August Order, CDC's most recent reassessment of the
status of the COVID-19 pandemic and associated public health risks
makes clear that circumstances have now changed significantly. Case
counts and hospitalization rates are decreasing, vaccination rates are
increasing, and the availability of testing and treatments also are
increasing. These changes and continuing trends in the public health
conditions since the conclusion of CDC's previous reassessment support
the decision to terminate the Orders as to UC immediately.
---------------------------------------------------------------------------
\68\ 2022 WL 658579, at *16-*18.
\69\ Id. at *16.
---------------------------------------------------------------------------
Additionally, the court found that the July Exception and August
Order did not adequately explain why UC were unlikely to spread COVID-
19 to others when they spend, on average, more than a day \70\ in
congregate settings at DHS facilities ``where they can expose other
detainees, DHS personnel, and American citizens and residents to
whatever viruses they are carrying.'' \71\ CDC has considered the
court's concern and concluded that because of the overall decrease in
cases of COVID-19 throughout the country, including at the Southwest
Border, coupled with the increase in vaccination rates, there is an
extremely low likelihood that intake processing of UC in DHS facilities
will pose a serious danger to the public health. Importantly, vaccines
are now widely available and vaccination rates have increased among the
American public in general and the DHS workforce in particular, as well
as in the countries of origin for the current majority of UC.\72\
Additionally, CBP continues to implement a variety of mitigation
efforts to prevent the spread of COVID-19 in POE and U.S. Border Patrol
facilities, as detailed above.\73\
---------------------------------------------------------------------------
\70\ In contrast, SA and FMU spend, on average, 2-3 days in
congregate settings at the border.
\71\ Id. at *16.
\72\ See COVID-19 Vaccinations in the United States, Centers for
Disease Control and Prevention, <a href="https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-people-onedose-pop-5yr">https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-people-onedose-pop-5yr</a> (updated Mar. 11,
2022).
\73\ See supra note 43.
---------------------------------------------------------------------------
Next, the court found that ``instead of trying to prevent [UC] from
spreading the viruses they are potentially carrying to the interior of
the United States, the Government chose to send [UC] away
[[Page 15250]]
from the facilities where the Government could monitor them and their
health.'' \74\ CDC clarifies that generally DHS is required by the
Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) to
promptly transfer UC to ORR. Even after such transfer, UC remain in
U.S. Government custody through ORR's network of providers where they
are subject to robust COVID-19-mitigation protocols, including
distancing, testing, masking, quarantining, cleaning and disinfection,
improved ventilation, staff vaccination, and available vaccination for
noncitizen children.\75\ These mitigation measures allow ORR to
identify COVID-19 cases, and the vast majority of UC who tested
positive for COVID-19 while at ORR shelters successfully completed
medical isolation. Unlike other covered noncitizens apprehended at the
border, UC in ORR custody undergo COVID-19 testing twice before being
released to the community. Accordingly, there very low risk that UC are
COVID-19 positive when they are released into the community. Moreover,
under ORR care, eligible children 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 vetted sponsors. When
UC are released to sponsors, ORR provides their sponsors with
appropriate medical and public health direction, including information
on how to obtain additional vaccination doses as needed as well as
quarantine and isolation guidance when appropriate.
---------------------------------------------------------------------------
\74\ Texas, 2022 WL 658579, at *16.
\75\ See supra II.B.
---------------------------------------------------------------------------
The court also found that the July Exception and August Order did
not explain how ``preventing the spread of COVID-19 between'' UC can
also ``prevent the spread of COVID-19 from the interior of the United
States.'' \76\ CDC has considered the court's concern and determined
that preventing the spread of COVID-19 between UC does prevent the
spread of COVID-19 into the interior because the fewer UC that test
positive for COVID-19, the lower the transmission rates will be from
any UC who is COVID-19 positive into the interior. In any event, as
discussed above, CDC has determined that, given the testing of UC that
occurs prior to transfer to ORR, as well as the robust mitigation
measures implemented by CBP since the August Order and in place at ORR
facilities, UC present very little risk of spreading of COVID-19 when
they are released to their sponsors.
---------------------------------------------------------------------------
\76\ Id.
---------------------------------------------------------------------------
The court also noted a prior U.S. Border Patrol Chief's statement
that CDC adopted the exception for UC before it issued the February
2021 Order pausing application of the October Order to UC. From this,
the court concluded that CDC's July Exception and August Order
constituted a ``departure from prior policy.'' Regardless of whether
there had been any defects in a prior unannounced decision or in the
February 2021 Order that affected the July Exception and August Order,
CDC is now providing a fuller explanation of its decision to terminate
the Orders with respect to UC immediately given the outcome of its most
recent public-health reassessment.
B. Absence of Reliance Interests
As noted above, in issuing its July Exception, CDC considered the
impact of excepting UC from the October 2020 Order on the local
healthcare systems in light of, among other things, data showing that
the number of UC presenting with severe COVID-19 disease remained
low.\77\ The U.S. District Court for the Northern District of Texas has
found, however, that neither the July Exception nor the August Order
``indicate that the agency considered all of Texas's potential reliance
interests.'' \78\ In issuing this Order, CDC has considered whether
state or local governments, or their subdivisions, have any
``legitimate reliance'' \79\ interests on the inclusion of UC in an
Order under 42 U.S.C. 265. No state or local government could have any
reliance interest relating to the exclusion of UC arising from the
August 2021 Order since it expressly excepted UC.\80\ Because
expulsions of UC under 42 U.S.C. 265 have not been occurring since at
least February 2021, no State could rely on UC being covered by the
August Order, and CDC does not see a need to provide advance notice
that it will continue excepting UC. We therefore focus on the October
2020 Order and its predecessors. CDC finds it useful to distinguish
between potential long-term and short-term reliance interests.
---------------------------------------------------------------------------
\77\ See 86 FR at 38,720.
\78\ Texas v. Biden, No. 4:21-cv-0579-P, Doc. 100 at 31.
\79\ See Dep't of Homeland Sec. v. Regents of the Univ. of Cal.,
140 S. Ct. 1891, 1913 (2020).
\80\ See 86 FR at 42838 (``As outlined in the July Exception and
incorporated herein, CDC is fully excepting UC from this Order.'').
---------------------------------------------------------------------------
On the issue of long-term reliance interests, CDC has determined
that no state or local government could be said to have legitimately
relied on the October 2020 Order to implement a long-term or permanent
change to its operations because the October 2020 Order was by its very
nature a short-term order subject to change at any time in response to
an evolving public health crisis and is subject to regular review by
CDC. Section 265 may be invoked only if there is a ``serious danger of
the introduction of [a communicable] disease into the United States,
and [if] this danger is so increased by the introduction of persons or
property from such country that a suspension of the right to introduce
such persons and property is required in the interest of the public
health.'' \81\ The statute may be invoked only ``for such period of
time as [CDC] may deem necessary'' to avert such a danger.\82\ Thus,
both Section 265 and HHS's implementing regulation recognize that in
prohibiting the introduction of covered persons ``in whole or in
part,'' \83\ a CDC Order is effective ``only for such period of time
that the Director deems necessary to avert the serious danger of the
introduction of a quarantinable communicable disease.'' \84\
---------------------------------------------------------------------------
\81\ 42 U.S.C. 265.
\82\ Id.
\83\ Id.
\84\ 42 CFR 71.40(a).
---------------------------------------------------------------------------
Accordingly, CDC's initial order issued under 42 U.S.C. 265, 268
and 42 CFR 71.40 in March 2020 made clear that the order represented a
``temporary suspension of the introduction of [covered] persons into
the United States'' \85\ and that the order would remain effective only
for ``30 days, or until [CDC] determine[s] that the danger of further
introduction of COVID-19 into the United States has ceased to be a
serious danger to the public health, whichever is shorter.'' \86\ The
March 2020 Order was subsequently extended on April 20, 2020 and
amended on May 19, 2020. The fact that the policy was frequently
reviewed should have underscored that the use of the Section 265
authority was a temporary measure subject to change at any time. The
October 2020 Order again confirmed this understanding of CDC's
authority under 42 U.S.C. 265, 268 and 42 CFR 71.40, noting the
``temporary'' nature of the suspension of the introduction of covered
persons, and the fact that the Order would be reviewed every 30 days
based on ``the latest information regarding the status of the COVID-19
pandemic and associated public health risks to ensure that the Order
remains necessary,'' and that CDC ``retain[ed] the authority to extend,
modify, or
[[Page 15251]]
terminate the Order, or implementation of [the] Order, at any time as
needed to protect public health.'' \87\
---------------------------------------------------------------------------
\85\ 85 FR at 17061 (emphasis added).
\86\ 85 FR at 17068.
\87\ 85 FR at 65807, 65812.
---------------------------------------------------------------------------
In addition, in November 2020, the United States District Court for
the District of Columbia enjoined the expulsion of UC on the ground
that Section 265 likely did not authorize such expulsions.\88\ Although
the government appealed the injunction and obtained a stay of the
injunction in January 2021,\89\ there remained legal uncertainty over
the government's authority to apply Section 265 to UC, thus further
rendering it unreasonable for any state or local government to act in
long-term reliance on the continued expulsion of UC under Section 265.
Moreover, as a factual matter, CDC is not aware of, nor has any state
or local government brought to CDC's attention, any reasonable or
legitimate reliance on the continued expulsion of UC under 42 U.S.C.
265. For example, no state or local government has indicated that it
altered its operations, spending, or regulation in light of the prior
application of Section 265 to UC. The total number of UC processed
under Title 8 remains relatively small, rendering it unlikely that
state or local governments would adversely rely on the application of
Section 265 to UC by making any material changes.
---------------------------------------------------------------------------
\88\ See P.J.E.S. v. Wolf, 502 F. Supp. 3d 492 (D.D.C. 2020).
\89\ Order, P.J.E.S. v. Mayorkas, et al., No. 20-5357 (D.C. Cir.
Jan. 29, 2021), Doc. No. 1882899.
---------------------------------------------------------------------------
Additionally, CDC does not believe that the presence of UC poses a
public health risk sufficient to justify continued application of 42
U.S.C. 265 to UC. Because 42 U.S.C. 265 authorizes the CDC to prevent
the introduction of noncitizens only when necessary to address a public
health risk, no state or local government could rely on Section 265
continuing to be applied in the absence of such a risk. Therefore,
CDC's considered judgment is that no state or local government
currently has a long-term reliance interest in the continued expulsion
of UC under the October 2020 Order and that any long-term reliance
interests that might be said to exist in connection with the continued
expulsion of UC under the October 2020 Order are outweighed by CDC's
determination that there is no public health justification to expel UC
at this time.\90\ To the extent that any state or local government did
rely on the expulsion of UC for purposes of resource allocation despite
the reasons cautioning against such reliance, CDC concludes that
resource allocation concerns do not outweigh CDC's determination that
expulsion of UC is not required to avert a serious danger to public
health.
---------------------------------------------------------------------------
\90\ See Regents, 140 S. Ct. at 1913 (explaining that features
evidencing the temporary and non-rights-conferring nature of a
government program ``surely are pertinent in considering the
strength of any reliance interests,'' and can be considered by the
agency).
---------------------------------------------------------------------------
CDC has also considered whether there may be any short-term
reliance on the continued expulsion of UC under the October 2020
Order.\91\ Because CDC is unaware of any such reliance beyond the
potential allocation of resources CDC already considered for local
healthcare systems, CDC does not believe that any state or local
government could have reasonably relied, even on a short-term basis, on
the continued expulsion of UC. As noted above, any such reliance would
not have been reasonable given the statutory requirement that 42 U.S.C.
265 be invoked only if there is a ``serious danger of the introduction
of [a communicable] disease into the United States, and that this
danger is so increased by the introduction of persons or property from
such country that a suspension of the right to introduce such persons
and property is required in the interest of the public health,'' as
well as the statutory mandate that Section 265 be utilized only ``for
such period of time as [CDC] may deem necessary'' to avert such a
danger. Any reliance also would have been particularly unwarranted
because UC were subject to expulsion under 42 U.S.C. 265 for only a
very limited time--from March 2020 to November 2020, and then briefly
from January 29, 2021 to shortly before the February 11, 2021 notice.
As such, the exclusion of UC from 42 U.S.C. 265 expulsions has been the
status quo generally since November 2020 and certainly since at least
February 2021. Thus, since the start of this public health emergency,
the period of time during which UC have been excepted from expulsion
under Section 265 is longer than the period of time during which they
were subject to such expulsion. Even if an entity had reasonably relied
on the inclusion of UC in an order under 42 U.S.C. 265 prior to
February 2021, it should have adjusted its position by now. Therefore,
CDC does not believe that any potential short-term reliance interests
can reasonably outweigh CDC's public health determination that there is
no public health justification for expelling UC under 42 U.S.C. 265 at
this time.
---------------------------------------------------------------------------
\91\ See Regents, 140 S. Ct. at 1913 (rejecting the government's
argument that the fact that the DACA program provided benefits only
in two-year increments and was said not to confer any substantive
rights ``automatically preclude[d] reliance interests,'' but noting
that such disclaimers ``are surely pertinent in considering the
strength of any reliance interests'').
---------------------------------------------------------------------------
Finally, Orders under 42 U.S.C. 265; 268 and 42 CFR 71.40 are not,
and do not purport to be, policy decisions about controlling
immigration; rather, as explained, CDC's exercise of its authority
under Section 265 depends on the existence of a public health
emergency. Thus, to the extent that border communities were relying on
an order under 42 U.S.C. 265 as a means of controlling immigration,
such reliance would not be reasonable or legitimate. Even if such
reliance were reasonable or legitimate, that reliance would not
outweigh CDC's public health assessment.
In conclusion, any such reliance interests, whether short- or long-
term, do not outweigh CDC's determination that expulsion of UC is not
necessary to avert a serious danger to public health. Because
disruption of ordinary processing of UC is a weighty action, CDC does
not believe it is appropriate to resume expulsion when CDC has
concluded that such action is not warranted under the terms of 42
U.S.C. 265.
C. Timing Considerations
As noted in the August Order, CDC reassesses ``[t]he circumstances
necessitating the Order . . . at least every 60 days.'' \92\
Accordingly, CDC has been in the process of evaluating the status of
the pandemic and the evolving public health conditions since the
conclusion of its previous review on January 29, 2022, to determine
whether the Order remains necessary in whole or part to protect the
public health. The current 60-day review process is scheduled to end on
March 30, 2022, and CDC will conclude its reassessment of whether the
Order remains necessary in whole or part to protect the public health
with respect to SA and FMU by that date.
---------------------------------------------------------------------------
\92\ Supra note 1.
---------------------------------------------------------------------------
CDC had previously excepted UC in its July Exception, as reiterated
and incorporated in its August Order.\93\ On March 4, 2022, the
District Court for the Northern District of Texas issued a preliminary
injunction ``enjoining and restraining'' CDC from enforcing the July
Exception and August Order to the extent that they ``except
unaccompanied alien children from the Title 42 procedures based solely
on their status as unaccompanied alien children'' because, the court
found, CDC had not
[[Page 15252]]
adequately explained its decision to treat UC differently than other
noncitizens subject to the October Order.\94\ The court stayed its
preliminary injunction for seven days.\95\
---------------------------------------------------------------------------
\93\ See 86 FR 38,717 (July 22, 2021); 86 FR at 42,837-38; see
also 86 FR 9942 (Feb. 17, 2021).
\94\ Texas v. Biden, No. 4:21-cv-579 (N.D. Tex. Mar. 4. 2022).
\95\ Id.
---------------------------------------------------------------------------
Because CDC has determined, after considering current public health
conditions and recent developments, that expulsion of UC is not
warranted to protect the public health, and in recognition of the
unique vulnerabilities of UC, CDC is immediately terminating the CDC
Orders to the extent they apply to UC. Because of their
vulnerabilities, UC are generally treated differently than other
individuals apprehended and processed at the border under the
immigration laws. When Section 265 does not apply, UC generally are
transferred to the care and custody of HHS's ORR pursuant to the
TVPRA.\96\ ORR is able to care for UC while implementing appropriate
COVID-19 mitigation measures, given ORR's robust network of care
facilities that provide testing and medical care, and DHS has already
been excepting UC in accordance with CDC's August Order. Because CDC
has in its expert judgment determined again that, based on current
circumstances, the expulsion of UC under Section 265 is not necessary
to protect the public health, there is no justification for subjecting
UC to the potentially significant harms they could suffer if the CDC
Orders were to be applied to them.\97\ For these reasons, CDC is
terminating the CDC Orders to the extent they apply to UC.
---------------------------------------------------------------------------
\96\ See D.B. v. Cardall, 826 F.3d 721, 738 (4th Cir. 2016)
(``The intricate web of statutory provisions relating to [UC]
reflects Congress's unmistakable desire to protect that vulnerable
group.'').
\97\ See Huisha-Huisha v. Mayorkas,--F.4th--, 2022 WL 628061,
*12 (D.C. Cir. Mar. 4, 2022) (noting that some migrants who are
expelled could be subject to persecution and victimization).
---------------------------------------------------------------------------
D. Basis for Termination With Respect to UC Under Sections 362 and 365
of the PHS Act and 42 CFR 71.40
CDC is hereby immediately terminating the August Order \98\ and all
prior orders issued pursuant to sections 362 and 365 of the PHS Act (42
U.S.C. 265, 268) and the implementing regulation at 42 CFR 71.40 to the
extent they apply to UC.\99\
---------------------------------------------------------------------------
\98\ See supra notes 1 and 4.
\99\ See supra note 7.
---------------------------------------------------------------------------
CDC is committed to using the least restrictive means necessary and
avoiding the imposition of unnecessary burdens in exercising its
communicable disease authorities. This aligns with the underlying legal
authority in 42 U.S.C. 265, which makes clear that this authority
extends only for such period of time deemed necessary to avert the
serious danger of the introduction of a quarantinable communicable
disease into the United States.\100\ Such an order must also be
predicated, in part, upon a determination that the danger of such
introduction is so increased that a suspension of the right to
introduce such persons into the United States is required in the
interest of public health.\101\
---------------------------------------------------------------------------
\100\ 42 U.S.C. 265; 42 CFR 71.40.
\101\ 42 CFR 71.40.
---------------------------------------------------------------------------
CDC has considered these and other relevant factors in the
foregoing reassessment with respect to UC, including the overall shift
in the U.S. Government response to the pandemic, and in the context of
reviewing the August Order with respect to UC, has determined that less
restrictive means are available to avert the public health risks
associated with the introduction, transmission, and spread of COVID-19
into the United States. Although COVID-19 continues to spread within
the United States, the numerous tools for disease prevention,
mitigation, and treatment which have been implemented over the past two
years (including those specific to UC in the custody of the federal
government) are sufficient at this point in time to protect public
health, such that an order suspending the right to introduce UC under
42 U.S.C. 265 is no longer required in the interest of public health.
CDC is not addressing application of the August Order to FMU and SA
through this termination.
IV. Issuance and Implementation of Termination
A. Termination as to UC
Based on the foregoing public health reassessment, I hereby
Terminate immediately with respect to UC the August Order and all
previous orders issued pursuant to Sections 362 and 365 of the PHS Act
(42 U.S.C. 265, 268) and their implementing regulation at 42 CFR
71.40.\102\
---------------------------------------------------------------------------
\102\ Control of Communicable Diseases; Foreign Quarantine:
Suspension of the Right to Introduce and Prohibition of Introduction
of Persons into United States from Designated Foreign Countries or
Places for Public Health Purposes, 85 FR 56424 (Sept. 11, 2020); 42
CFR 71.40.
---------------------------------------------------------------------------
Immediate termination of the August Order with respect to UC is
based on the current status of the COVID-19 pandemic and the public
health mitigation measures available for UC and the public. In making
this determination, I have considered myriad facts, including
epidemiological information regarding COVID-19, the emergence of SARS-
CoV-2 variants, the morbidity and mortality associated with the disease
for individuals in certain risk categories, COVID-19 Community Levels,
national levels of transmission and immunity, the availability and
efficacy of vaccination and treatments, as well as care available to UC
and public health concerns with congregate settings at border
facilities. While holding UC in congregate settings with limited
options for COVID-19 mitigation is accompanied by some inherent risk,
the overall public health landscape in the United States has changed
such that the justification for the August Order is no longer sustained
with respect to UC particularly in light of the mitigation measures as
applied to UC.
As noted previously, CDC is not addressing application of the
August Order to FMU and SA through this termination. DHS will continue
to exercise its discretion to issue exceptions pursuant to a DHS-
approved process or on a case-by-case basis, based on the totality of
the circumstances as set forth in the August Order to FMU and SA, as
appropriate.
B. APA Review
This Termination shall be immediately effective with respect to UC.
I consulted with DHS and other federal departments as needed before I
issued this Order and requested that DHS aid in the implementation of
this Termination and continued aspects of the Order because CDC does
not have the capability, resources, or personnel needed to do so.\103\
---------------------------------------------------------------------------
\103\ 42 U.S.C. 268; 42 CFR 71.40(d).
---------------------------------------------------------------------------
This Termination, like the preceding Orders issued under this
authority, is not a rule subject to notice and comment under the 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 Termination; it would be
impracticable and contrary to public health practices, the public
interest, and immigration laws that apply in the absence of an order
under 42 U.S.C. 265 to delay the issuing and effective date of this
Termination.\104\ In addition, this Order concerns ongoing discussions
with Canada, Mexico, and other countries regarding how best to control
COVID-19 transmission over shared borders and therefore directly
``involve[s] . . . a . . . foreign affairs function of the United
States.'' \105\ Thus, for both of the foregoing reasons, notice and
comment
[[Page 15253]]
and a delay in effective date are not required.
---------------------------------------------------------------------------
\104\ 5 U.S.C. 553(a)(1).
\105\ 5 U.S.C. 553(a)(1).
---------------------------------------------------------------------------
With this Termination, I hereby determine that the danger of
further introduction, transmission, or spread of COVID-19 into the
United States from UC, as defined in the August Order, has ceased to be
a serious danger to the public health and therefore the continuation of
the August Order, and all previous orders issued under the same
authority, with respect to UC is no longer necessary to protect public
health. Nothing in this Termination will prevent me from issuing a new
Order under 42 U.S.C. 265, 268 and 42 CFR 71.40 based on new findings,
as dictated by public health needs.
Sherri Berger,
Chief of Staff, Centers for Disease Control and Prevention.
[FR Doc. 2022-05687 Filed 3-15-22; 11:15 am]
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 March 17, 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.