Rule2022-08741
Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Mexico
Primary source
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Published
April 22, 2022
Effective
April 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 continue 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-Mexico 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 the 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 at arrival. According to the Centers for Disease Control and Prevention ("CDC"), vaccines remain the most effective public health measure to protect people from severe illness or death from COVID-19, slow the transmission of COVID-19, and reduce the likelihood of new COVID-19 variants emerging. These restrictions help protect the health and safety of both the personnel at the border and other travelers, as well as U.S. destination communities. These 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.
Full Text
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<title>Federal Register, Volume 87 Issue 78 (Friday, April 22, 2022)</title>
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[Federal Register Volume 87, Number 78 (Friday, April 22, 2022)]
[Rules and Regulations]
[Pages 24041-24048]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-08741]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
19 CFR Chapter I
RIN 1601-ZA21
Notification of Temporary Travel Restrictions Applicable to Land
Ports of Entry and Ferries Service Between the United States and Mexico
AGENCY: Office of the Secretary, U.S. Department of Homeland Security;
U.S.
[[Page 24042]]
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 continue 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-Mexico 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 the 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 at arrival. According to the
Centers for Disease Control and Prevention (``CDC''), vaccines remain
the most effective public health measure to protect people from severe
illness or death from COVID-19, slow the transmission of COVID-19, and
reduce the likelihood of new COVID-19 variants emerging. These
restrictions help protect the health and safety of both the personnel
at the border and other travelers, as well as U.S. destination
communities. These 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.
DATES: These restrictions will become effective at 12:00 a.m. Eastern
Daylight Time (EDT) on April 22, 2022, and may be amended or rescinded
at any time, including to conform these restrictions to any intervening
changes in Presidential Proclamation 10294 and implementing CDC orders
and consistent with the requirements of 19 U.S.C. 1318.
FOR FURTHER INFORMATION CONTACT: Greta Campos, Office of Field
Operations, U.S. Customs and Border Protection (CBP), 202-344-2775.
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-Mexico 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 Mexico 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 16547 (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-Canada border to ``essential
travel,'' as further defined in that document. 85 FR 16548 (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. On October 21, 2021,
DHS extended 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 then-recent increases in case levels, 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,
whether for essential or non-essential reasons.\4\
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\2\ See 86 FR 58216 (Oct. 21, 2021) (extending restrictions for
the United States-Mexico border); 86 FR 58218 (Oct. 21, 2021)
(extending restrictions for the United States-Canada 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 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 upon request.\6\ DHS also announced in October 2021 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. In making this
announcement, the Department provided fair notification of the
anticipated changes, thereby allowing ample time for noncitizen non-LPR
essential travelers to get fully vaccinated against COVID-19.\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 10294''),
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 86 FR 72843 (Dec. 23, 2021) (describing the announcement
with respect to Mexico); 86 FR 72842 (Dec. 23, 2021) (describing the
announcement with respect to Canada).
\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 Jan. 20, 2022); 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 Jan. 20, 2022).
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[[Page 24043]]
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\ Consistent with these considerations and in line with DHS's October
2021 announcement, 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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In support of this conclusion, CDC cited studies indicating 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. Conversely,
unvaccinated people are 14 times more likely to die from COVID-19 than
those who are vaccinated.\9\ Per CDC, ``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.'' \10\
In a January 14, 2022 update, 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
had 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 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 to
travel restrictions for specific worker categories as a public health
matter.\11\
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\9\ Id.
\10\ Id.
\11\ 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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Given these recommendations, and after consultation with
interagency partners and consideration of all relevant factors,
including economic considerations, DHS announced the decision of the
Secretary to temporarily restrict travel by noncitizen non-LPRs into
the United States at land POEs along the United States-Mexico border by
requiring proof of COVID-19 vaccination upon request at arrival.\12\
This requirement was put in place at 12:00 a.m. EST on January 22, 2022
and will remain in effect until 11:59 p.m. EDT on April 21, 2022,
unless amended or rescinded prior to that time.
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\12\ See 87 FR 3425 (Jan. 24, 2022); 87 FR 3429 (Jan. 24, 2022)
(parallel Canada notification).
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CDC's Public Health Assessment and Recommendation To Continue COVID-19
Vaccination Requirement for Entry of Noncitizen Non-LPR Travelers
In considering whether to extend the travel restrictions, DHS
solicited, and CDC provided to DHS, an updated public health assessment
and recommendations regarding the DHS requirement for noncitizen non-
LPRs to be fully vaccinated and to provide proof of COVID-19
vaccination for entry at land POEs. CDC sent a memorandum to the
Commissioner of U.S. Customs and Border Protection on March 21, 2022
with its recommendations.\13\ CDC reiterated that vaccination protects
the public from severe illness, including deaths and
hospitalizations.\14\ Of note, a recent CDC study found that, for those
people hospitalized with COVID-19, severe outcomes, as measured by
length of hospital stay and number of intensive care unit stays,
appeared lower at the time when the Omicron variant was initially
surging than during previous periods of high transmission associated
with previous variants--something that CDC attributed in part to wider
vaccination coverage and up-to-date boosters.\15\ This is consistent
with CDC's assessment that vaccines remain the most effective public
health measure to protect people from severe illness or death from
COVID-19, slow transmission of COVID-19, and reduce the likelihood of
new COVID-19 variants emerging.\16\
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\13\ See Memorandum from CDC to CBP, Update: Public Health
Recommendation for Proof of COVID-19 Vaccination at U.S. Land
Borders under Title 19 (March 21, 2022).
\14\ See Memorandum from CDC to CBP (March 21, 2022).
\15\ COVID Data Tracker Weekly Review: Interpretive Summary for
February 11, 2022, Centers for Disease Control and Prevention,
<a href="https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/02112022.html">https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/02112022.html</a> (Feb. 11, 2022); see Memorandum from CDC to
CBP (March 21, 2022).
\16\ COVID-19 Vaccines Work, December 23, 2021. <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/work.html">https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/work.html</a>
(accessed March. 22, 2022).
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CDC also noted that the U.S. Government's actions and guidance in
response to COVID-19 have evolved over the course of the pandemic as
more scientific information has become available. During earlier phases
of the pandemic, pharmaceutical interventions were unavailable, and the
United States had to instead rely on largely nonpharmaceutical
interventions, including limits on gatherings and school closures,
masking, and testing. Expanded epidemiologic data, advances in
scientific knowledge, and the availability of pharmaceutical
interventions (both vaccines and effective treatments), however, have
permitted many of those early actions to be dialed back in favor of a
more nuanced and narrowly tailored set of tools that provide a less
burdensome means of preventing and controlling COVID-19. In CDC's
judgment, maintaining high vaccination coverage is essential to
sustaining the use of less burdensome measures. To ensure sustained
vaccine coverage, CDC recommends continuing both domestic efforts to
increase vaccine uptake (primary series and booster doses) among U.S.
residents and measures to ensure high rates of vaccination coverage
among persons entering the United States.\17\
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\17\ See Memorandum from CDC to CBP (March 21, 2022).
\18\ Id.
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Echoing prior assessments, CDC's March 21, 2022 recommendation
``encourages continued implementation of comprehensive requirements for
proof of vaccination for all [noncitizen non-LPRs] seeking entry into
the United States,'' whether by land or by air.\18\ CDC also once again
recommended a ``comprehensive'' proof-of-vaccination
[[Page 24044]]
requirement and recommended against ``further exceptions for specific
worker categories at this time,'' as global vaccination rates continue
to rise.\19\
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\19\ See id.
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Of particular importance to this analysis, COVID-19 vaccines--which
according to CDC are ``the single most important measure'' for
responding to COVID-19 \20\--are widely available and have been
increasingly available for months. As of April 8, 2022, in Canada,
81.39 percent of the entire population was fully vaccinated against
COVID-19, while 85.59 percent of individuals five years and older are
fully vaccinated against COVID-19.\21\ According to the U.S. Department
of State, as of March 28, 2022, Mexico administered at least one
vaccine dose to 85.5 million people (90 percent of the adult target
population) and fully vaccinated 79.6 million (87.8 percent of the
adult target population). Approximately 61.8 percent of Mexico's total
population is fully vaccinated.
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\20\ See Memorandum from CDC to CBP (Dec. 14, 2021).
\21\ 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> (accessed Apr. 17,
2022).
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On April 14, 2022, DHS asked CDC whether CDC's March 21, 2022
recommendations had changed over the preceding three weeks. CDC
responded that its recommendations had not changed. CDC had reviewed
the available data and concluded that its recommendations remain the
same. CDC wrote that it ``encourages continued implementation of
comprehensive requirements for proof of vaccination for all [noncitizen
non-LPRs] seeking entry into the United States for travel or commerce,
whether by land or by air. Doing so will help maintain high vaccination
coverage across the United States, which is essential to sustaining the
advances we have made thus far and have allowed some early actions to
be revised. CDC does not recommend further exceptions for specific
worker categories at this time.'' \22\
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\22\ See Memorandum from CDC to CBP, Update: Public Health
Recommendation for Proof of COVID-19 Vaccination at U.S. Land
Borders under Title 19 (Apr. 14, 2022).
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Analysis of Temporary Travel Restrictions Under 19 U.S.C. 1318
DHS has consulted with interagency partners, taking into account
relevant factors, including the above-mentioned CDC public health
assessment, economic considerations, and operational impacts,\23\ and
concludes that a broad COVID-19 vaccination requirement at land POEs
remains necessary and appropriate. In reaching this conclusion, DHS
also reviewed a range of concerns, including those related to potential
impacts on employers seeking H-2A temporary agricultural workers and
entities that employ or rely on long-haul truck drivers engaged in
cross-border transportation of goods. After careful review, DHS has
determined not to provide industry-specific exceptions for the
following two key reasons: (1) Workers engaged in trucking and
agriculture continue to present a public health risk if not vaccinated;
and (2) the vaccination requirement that has been in place since
January 22, 2022 has not materially disrupted cross-border economic
activity, according to data analysis that included input from DHS and
other federal agencies.
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\23\ Consistent with its assessment in January, CBP continues to
assess that a testing option is not operationally feasible given the
significant number of land border crossers that go back and 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.
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First, even if particular workers do not engage in extended
interaction with others, they still engage in activities that involve
contact with others, thereby increasing the risk of being infected and
spreading COVID-19. It is for this reason, and because vaccines are
widely available, that as a public health matter, CDC once again did
not recommend further exceptions for specific worker categories at this
time.\24\ Such workers also may enter the United States after
contracting COVID-19 elsewhere, become seriously ill after arrival, and
require hospitalization and use of limited healthcare resources as a
result. A COVID-19 vaccination requirement at land POEs helps protect
the health and safety of personnel at the border, other travelers, and
the U.S. communities where these persons may be traveling and spending
time among members of the public. Such a requirement also reduces
potential burdens on local healthcare resources in U.S. communities.
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\24\ See Memorandum from CDC to CBP (Mar. 21, 2022).
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Second, DHS data, as well as that provided by other federal
agencies, does not indicate a material disruption to cross-border
economic activity and movement resulting from the vaccination
requirement imposed in January 2022, including among temporary
agriculture workers and commercial truck drivers. In fact, there has
been an increase, not decrease, in the number of H-2A nonimmigrant
workers admitted to the United States as compared to last year. While
it is possible that there are individual-level effects on a subset of
workers who are not fully vaccinated or their current or prospective
employers, such impacts appear marginal based on the aggregate data.
As shown in Figure 1 (where the vertical line represents the date
the vaccination requirement for noncitizen non-LPRs went into full
effect), H-2A admissions this fiscal year generally track seasonal
patterns, which have reflected a longer-term increase in H-2A
admissions since 2019, as shown in Figure 2. In fact, as stated above,
H-2A admissions were generally higher between January 22, 2022 and
March 31, 2022 when the COVID-19 vaccination requirement has been in
place, as compared to H-2A admission numbers for the same time in 2021.
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[GRAPHIC] [TIFF OMITTED] TR22AP22.009
[GRAPHIC] [TIFF OMITTED] TR22AP22.010
Likewise, there was no significant decrease in border crossings by
commercial truck following the vaccination requirement that went into
effect on January 22, 2022. Figures 3 and 4 cover the months before the
new
[[Page 24046]]
vaccination requirement was implemented as well as the months when the
new vaccination requirement was implemented. This data shows regular
fluctuations generally consistent with what is seen in data for the
same time in Fiscal Year 2021 and in the months in 2022 before the new
vaccination requirement went into effect. And while the aggregate
number of commercial trucks entering the United States from Canada in
2022 is lower than 2021, this initial decrease predates the
implementation of the new vaccination requirement on January 22, 2022,
and is not mirrored on the Southern border, where commercial truck
traffic appears to have slightly increased in 2022.
[GRAPHIC] [TIFF OMITTED] TR22AP22.011
[GRAPHIC] [TIFF OMITTED] TR22AP22.012
[[Page 24047]]
BILLING CODE 9112-FP-C
DHS, in consultation with interagency partners, also has considered
the operational effect of these requirements. In the January 2022
Notification, DHS projected minimal short-term operational impact. The
relevant data that DHS and other federal agency partners have analyzed
indicate that these projections were accurate. DHS has closely
monitored wait times at land POEs, examined cross-border movement, and
analyzed available data on border crossings since the vaccination
requirement went into effect at land POEs on January 22, 2022, and has
observed very minimal operational disruptions. As travelers become more
familiar with the vaccination requirement and vaccination rates
continue to increase globally, DHS projects any operational impacts to
further diminish.
Based on the foregoing analysis and CDC recommendations, with this
Notification, DHS will continue to align COVID-19 travel restrictions
applicable to land POEs with those that apply to incoming international
air travel,\25\ ensuring more consistent application of COVID-19
vaccination requirements across travel domains. As a result, with
limited exception, all noncitizen non-LPRs will be required, upon
request, to show proof of full vaccination against COVID-19 to enter
the United States.
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\25\ See Presidential Proclamation 10294, supra, at n.5.
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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 Mexico
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),\26\ I have determined, in
consultation with CDC and other interagency partners, that it is
necessary to respond to the ongoing threat at land POEs along the
United States-Mexico border by allowing the processing of travelers to
the United States for 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 Presidential Proclamation 10294 and CDC's implementing Order
(``CDC Order'').\27\ 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:
\28\
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\26\ 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).
\27\ 86 FR 61224 (Nov. 05, 2021).
\28\ The exceptions to this temporary restriction are generally
aligned with those outlined in Presidential Proclamation 10294 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 noncitizen non-LPRs
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
this requirement to provide proof of eligibility consistent with
documentation requirements outlined in CDC's Technical
Instructions.\29\
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\29\ 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 Mar. 3, 2022).
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This Notification does not apply to air or sea travel (except
ferries and pleasure craft) between the United States and Mexico. This
Notification does apply to passenger/freight rail, passenger ferry
travel, and pleasure boat travel between the United States and Mexico.
These restrictions address temporary conditions and may be amended or
rescinded at any time, including to conform these restrictions to any
intervening changes in Presidential Proclamation 10294 and implementing
CDC orders and consistent with the requirements of 19 U.S.C. 1318.\30\
In conjunction with interagency partners, DHS will closely monitor the
effect of the requirements discussed herein, and the Secretary will, as
needed and warranted, exercise relevant authority in support of the
U.S. national interest.
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\30\ Although past notifications of this type have sunset on
dates certain, DHS has determined, in light of the analysis above,
to instead engage in regular reviews of this policy, guided by
public health data and other relevant inputs. In determining whether
and when to lift the requirements imposed under this notification,
DHS anticipates that it will take account of whether Presidential
Proclamation 10294 remains in effect, among all relevant factors,
consistent with the requirements of 19 U.S.C. 1318. DHS anticipates
lifting the requirements imposed under this notification no later
than when Presidential Proclamation 10294 is revoked.
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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. It is exempt from notice and comment
requirements because it concerns ongoing discussions with Canada and
[[Page 24048]]
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 ongoing
public health emergency caused by COVID-19, including the rapidly
evolving circumstances associated with fluctuating rates of infection
due to the Omicron variant and other potential future variants, 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. 2022-08741 Filed 4-21-22; 8:45 am]
BILLING CODE 9112-FP-P
</pre></body>
</html>Indexed from Federal Register on April 22, 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.