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
| Published date | 26 March 2020 |
| Citation | 85 FR 17060 |
| Record Number | 2020-06327 |
| Section | Notices |
| Court | Centers For Disease Control And Prevention,Health And Human Services Department |
Federal Register, Volume 85 Issue 59 (Thursday, March 26, 2020)
[Federal Register Volume 85, Number 59 (Thursday, March 26, 2020)]
[Notices]
[Pages 17060-17088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06327]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Disease Control and Prevention
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
AGENCY: Centers for Disease Control and Prevention (CDC), Department of
Health and Human Services (HHS).
ACTION: Notice.
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SUMMARY: The Centers for Disease Control and Prevention (CDC), a
component of the Department of Health and Human Services (HHS),
announces the issuance of a an Order under Section 362 and 365 of the
Public Health Service Act that suspends the introduction of certain
persons from countries where an outbreak of a communicable disease
exists. The Order was issued on March 20, 2020.
DATES: This action took effect March 20, 2020.
FOR FURTHER INFORMATION CONTACT: Kyle McGowan, Office of the Chief of
Staff, Centers for Disease Control and Prevention, 1600 Clifton Road
NE, MS V18-2, Atlanta, GA 30329. Phone: 404-639-7000. Email:
[email protected].
SUPPLEMENTARY INFORMATION: On March 20, 2020, the Director of the
Centers for Disease Control and Prevention issued the following Order
prohibiting the introduction of certain persons from a country where an
outbreak of a communicable disease exists.
A copy of the order is provided below and a copy of the signed
order can be found at https://www.cdc.gov/quarantine/aboutlawsregulationsquarantineisolation.html.
[[Page 17061]]
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):
Order Suspending Introduction of Certain Persons From Countries Where a
Communicable Disease Exists
I. Purpose and Application
I issue this order pursuant to Sections 362 and 365 of the Public
Health Service (PHS) Act, 42 U.S.C. 265, 268, and their implementing
regulations, which authorize the Director of the Centers for Disease
Control and Prevention (CDC) to suspend the introduction of persons
into the United States when the Director determines that the existence
of a communicable disease in a foreign country or place creates a
serious danger of the introduction of such disease into the United
States and the danger is so increased by the introduction of persons
from the foreign country or place that a temporary suspension of such
introduction is necessary to protect the public health.
This order applies to persons traveling from Canada or Mexico
(regardless of their country of origin) who would otherwise be
introduced into a congregate setting in a land Port of Entry (POE) or
Border Patrol station at or near the United States borders with Canada
and Mexico, subject to the exceptions detailed below. The danger to the
public health that results from the introduction of such persons into
congregate settings at or near the borders is the touchstone of this
order.
This order is necessary to protect the public health from an
increase in the serious danger of the introduction of Coronavirus
Disease 2019 (COVID-19) into the land POEs, and the Border Patrol
stations between POEs, at or near the United States borders with Canada
and Mexico. Those facilities are operated by U.S. Customs and Border
Protection (CBP), an agency within the U.S. Department of Homeland
Security (DHS). This order is also necessary to protect the public
health from an increase in the serious danger of the introduction of
COVID-19 into the interior of the country when certain persons are
processed through the same land POEs and Border Patrol stations and
move into the interior of the United States.
There is a serious danger of the introduction of COVID-19 into the
land POEs and Border Patrol stations at or near the United States
borders with Canada and Mexico, and into the interior of the country as
a whole, because COVID-19 exists in Canada, Mexico, and the other
countries of origin of persons who migrate to the United States across
the United States land borders with Canada and Mexico. Those persons
are subject to immigration processing in the land POEs and Border
Patrol stations. Many of those persons (typically aliens who lack valid
travel documents and are therefore inadmissible) are held in the common
areas of the facilities, in close proximity to one another, for hours
or days, as they undergo immigration processing. The common areas of
such facilities were not designed for, and are not equipped to,
quarantine, isolate, or enable social distancing by persons who are or
may be infected with COVID-19. The introduction into congregate
settings in land POEs and Border Patrol stations of persons from Canada
or Mexico increases the already serious danger to the public health to
the point of requiring a temporary suspension of the introduction of
such persons into the United States.
The public health risks of inaction are stark. They include
transmission and spread of COVID-19 to CBP personnel, U.S. citizens,
lawful permanent residents, and other persons in the POEs and Border
Patrol stations; further transmission and spread of COVID-19 in the
interior; and the increased strain that further transmission and spread
of COVID-19 would put on the United States healthcare system and supply
chain during the current public health emergency.
These risks are troubling because POEs and Border Patrol stations
were not designed and are not equipped to deliver medical care to
numerous persons, nor are they capable of providing the level of care
that vulnerable populations with COVID-19 may require. Indeed, CBP
typically transfers persons with acute presentations of illness to
local or regional healthcare providers for treatment. Outbreaks of
COVID-19 in land POEs or Border Patrol stations would lead to transfers
of such persons to local or regional health care providers, which would
exhaust the local or regional healthcare resources, or at least reduce
the availability of such resources to the domestic population, and
further expose local or regional healthcare workers to COVID-19.\1\ The
continuing availability of healthcare resources to the domestic
population is a critical component of the Federal government's overall
public health response to COVID-19. Action is required.
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\1\ An outbreak of COVID-19 among CBP personnel in land POEs or
Border Patrol stations would impact CBP operations negatively.
Although not part of the CDC public health analysis, it bears
emphasizing that the impact on CBP could reduce the security of U.S.
land borders and the speed with which cargo moves across the same.
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As stated above, this order applies to persons traveling from
Canada or Mexico (regardless of their country of origin) who would
otherwise be introduced into a congregate setting in a land POE or
Border Patrol station at or near the United States border with Canada
or Mexico, subject to exceptions. This order does not apply to U.S.
citizens, lawful permanent residents, and their spouses and children;
members of the armed forces of the United States, and associated
personnel, and their spouses and children; persons from foreign
countries who hold valid travel documents and arrive at a POE; or
persons from foreign countries in the visa waiver program who are not
otherwise subject to travel restrictions and arrive at a POE.
Additionally, this order does not apply to persons whom customs
officers of DHS determine, with approval from a supervisor, should be
excepted based on the totality of the circumstances, including
consideration of significant law enforcement, officer and public
safety, humanitarian, and public health interests. DHS shall consult
with CDC concerning how these types of case-by-case, individualized
exceptions shall be made to help ensure consistency with current CDC
guidance and public health assessments.
DHS has informed CDC that persons who are traveling from Canada or
Mexico (regardless of their country of origin), and who must be held
longer in congregate settings in POEs or Border Patrol stations to
facilitate immigration processing, would typically be aliens seeking to
enter the United States at POEs who do not have proper travel
documents, aliens whose entry is otherwise contrary to law, and aliens
who are apprehended near the border seeking to unlawfully enter the
United States between POEs. This order is intended to cover all such
aliens.
For simplicity, I shall refer to the persons covered by this order
as ``covered aliens.'' I suspend the introduction of all covered aliens
into the United States for a period of 30 days, starting from the date
of this order. I may extend this order if necessary to protect the
public health.
[[Page 17062]]
II. Factual Basis for Order \1\
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\1\ Given the dynamic nature of the public health emergency, CDC
recognizes that the types of facts and data set forth in this
section may change rapidly (even within a matter of hours). The
facts and data cited by CDC in this order represent a good-faith
effort by the agency to present the current factual justification
for the order.
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1. COVID-19 is a Global Pandemic That has Spread Rapidly
COVID-19 is a communicable disease caused by a novel (new)
coronavirus, SARS-CoV-2, that was first identified as the cause of an
outbreak of respiratory illness that began in Wuhan, Hubei Province,
People's Republic of China (China).\2\
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\2\ Centers for Disease Control and Prevention, Situation
Summary (Mar. 15, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html.
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COVID-19 appears to spread easily and sustainably within
communities.\3\ The virus is thought to transfer primarily by person-
to-person contact through respiratory droplets produced when an
infected person coughs or sneezes; it may also transfer through contact
with surfaces or objects contaminated with these droplets.\4\ There is
also evidence of asymptomatic transmission, in which an individual
infected with COVID-19 is capable of spreading the virus to others
before exhibiting symptoms.\5\ The ease of transmission presents a risk
of a surge in hospitalizations for COVID-19, which would reduce
available hospital capacity. Such a surge has been identified as a
likely contributing factor to the high mortality rate for COVID-19
cases in Italy and China.\6\
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\3\ Centers for Disease Control and Prevention, Interim
Infection Prevention and Control Recommendations for Patients with
Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in
Healthcare Settings (Mar. 10, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/infection-control/control-recommendations.html.
\4\ Id.
\5\ Centers for Disease Control and Prevention, Interim Clinical
Guidance for Management of Patients with Confirmed Coronavirus
Disease (COVID-19) (Mar. 7, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html.
\6\ Ariana Eunjung Cha, Washington Post, Spiking U.S.
Coronavirus Cases Could Force Rationing Decisions Similar to Those
Made in Italy, China (Mar. 15, 2020), available at https://www.washingtonpost.com/health/2020/03/15/coronavirus-rationing-us/.
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Symptoms include fever, cough, and shortness of breath, and
typically appear 2-14 days after exposure.\7\ Manifestations of severe
disease have included severe pneumonia, acute respiratory distress
syndrome (ARDS), septic shock, and multi-organ failure.\8\ According to
the WHO, approximately 3.4% of reported COVID-19 cases have resulted in
death globally.\9\ This mortality rate is higher among older adults or
those with compromised immune systems.\10\ Older adults and people who
have severe chronic medical conditions like heart, lung, or kidney
disease are also at higher risk for more serious COVID-19 illness.\11\
Early data suggest older people are twice as likely to have serious
COVID-19 illness.\12\
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\7\ Centers for Disease Control and Prevention, Coronavirus
Disease 2019 (COVID-19) (Mar. 16, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html.
\8\ Supra, note 4.
\9\ WHO Director-General's Opening Remarks at the Media Briefing
on COVID-19 (Mar. 3, 2020), available at https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---3-march-2020.
\10\ Supra, note 4.
\11\ Id.
\12\ Id.
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As of March 17, 2020, there were over 179,112 cases of COVID-19
globally in 150 locations, resulting in over 7,426 deaths; more than
4,226 cases have been identified in the United States, with new cases
being reported daily and over 75 deaths due to the disease.\13\
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\13\ Centers for Disease Control and Prevention, Coronavirus
Disease 2019 (COVID-19): Cases in U.S. (Mar. 17, 2020), available at
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-in-us.html; World Health Organization, Coronavirus
disease 2019 (COVID-19) Situation Report--57 (Mar. 17, 2020),
available at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200317-sitrep-57-covid-19.pdf?sfvrsn=a26922f2_2.https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200317-sitrep-57-covid-19.pdf?sfvrsn=a26922f2_2.
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Unfortunately, at this time, there is no vaccine against COVID-19,
nor are there any approved therapeutics available for those who become
infected. Treatment is currently limited to supportive care to manage
symptoms. Hospitalization may be required in severe cases and
mechanical respiratory support may be needed in the most severe cases.
Testing is available to confirm suspected cases of COVID-19 infection.
Testing requires specimens collected from the nose, throat or lungs;
specimens can only be analyzed in a laboratory setting. At present,
results are typically available within three to four days.\14\ There is
currently no rapid test for COVID-19 that can provide results at the
time of sample collection, although efforts are underway to develop
such a test.
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\14\ Centers for Disease Control and Prevention, Interim
Guidelines for Collecting, Handling, and Testing Clinical Specimens
from Persons for Coronavirus Disease 2019 (COVID-19) (Mar. 13,
2020), available at https://www.cdc.gov/coronavirus/2019-nCoV/lab/guidelines-clinical-specimens.html.
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On January 30, 2020, the Director General of the WHO declared
COVID-19 to be a Public Health Emergency of International Concern under
the International Health Regulations.\15\ The following day, the
Secretary of Health and Human Services (HHS) declared that COVID-19 is
a public health emergency under the Public Health Service Act
(PHSA).\16\ On March 11, 2020, the WHO officially classified the global
COVID-19 outbreak as a pandemic.\17\ On March 13, 2020, the President
issued a Presidential Declaration that COVID-19 constitutes a National
Emergency.\18\ Likewise, all U.S. states, territories, and the District
of Columbia have declared a state of emergency in response to the
growing spread of COVID-19.\19\
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\15\ World Health Organization, Statement on the second meeting
of the International Health Regulations (2005) Emergency Committee
regarding the outbreak of novel coronavirus (2019-nCOv) (January 30,
2020), https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-
emergency-committee-regarding-the-outbreak-of-novel-coronavirus-
(2019-ncov).
\16\ U.S. Dept. of Health and Human Services, Office of the
Assistant Secretary for Preparedness and Response, Determination
that a Public Health Emergency Exists (January 31, 2020), https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx.
\17\ World Health Organization, WHO Director-General's opening
remarks at the media briefing on COVID-19--11 (March 11, 2020,
https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020.
\18\ Message to Congress on Declaring a National Emergency
Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (March
13, 2020) https://www.whitehouse.gov/briefings-statements/message-congress-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.
\19\ National Governors Assn., Coronavirus: What You Need to
Know, (last updated March 17, 2020) https://www.nga.org/coronavirus/#states.
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Global efforts to slow the spread of COVID-19 have included
sweeping travel limitations. Countries such as Japan, Australia,
Israel, Russia, and the Philippines have imposed stringent restrictions
on travelers who have recently been in China, the epicenter of the
pandemic. Similar travel restrictions have since been imposed on
individuals from places experiencing substantial outbreaks, including
the Islamic Republic of Iran (Iran), South Korea, and Europe. In many
countries, individuals are being asked to self-quarantine for 14 days--
the outer limit of the COVID-19's estimated incubation period--
following return from a foreign country with sustained community
transmission.\20\
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\20\ James Asquith, [Update] Complete Coronavirus Travel Guide--
The Latest Countries Restricting Travel, (March 16, 2020), https://www.forbes.com/sites/jamesasquith/2020/03/15/complete-coronavirus-travel-guide-the-latest-countries-restricting-travel/#2fdc3b7d715b.
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[[Page 17063]]
In the United States, the President has suspended the entry of most
travelers from China (excluding Hong Kong and Macau), Iran, the
Schengen Area of Europe,\21\ the United Kingdom (excluding overseas
territories outside of Europe), and the Republic of Ireland, due to
COVID-19.\22\ CDC has issued Level 3 Travel Health Notices recommending
that travelers avoid all nonessential travel to China (excluding Hong
Kong and Macau), Iran, South Korea, and most of Europe.\23\ The U.S.
Department of State has issued a global Level 4 Do Not Travel Advisory
advising travelers to avoid all international travel due to the global
impact of COVID-19.\24\ In addition, CDC has recommended that
travelers, particularly those with underlying health conditions, avoid
all cruise ship travel worldwide.\25\ The U.S. Department of State has
similarly issued guidance that U.S. citizens should not travel by
cruise ship at this time.\26\
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\21\ For purposes of this order, the Schengen Area comprises 26
European states: Austria, Belgium, Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway,
Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and
Switzerland.
\22\ Proclamation on the Suspension of Entry as Immigrants and
Nonimmigrants of Certain Additional Persons Who Pose a Risk of
Transmitting Coronavirus (March 14, 2020) https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-coronavirus-2/.
\23\ Centers for Disease Control and Prevention, Travelers'
Health, COVID--19 in Europe, Warning--Level 3, Avoid Nonessential
Travel--Widespread Ongoing Transmission (March 11, 2020) https://wwwnc.cdc.gov/travel/notices/warning/coronavirus-europe.
\24\ U.S. Dept. of State, Bureau of Consular Affairs, Global
Level 4 Health Advisory--Reconsider Travel (March 15, 2020) https://travel.state.gov/content/travel/en/traveladvisories/ea/travel-advisory-alert-global-level-4-health-advisory-issue.html.
\25\ Centers for Disease Control and Prevention, Travelers'
Health, COVID--19 and Cruise Ship Travel, Warning--Level 3, Avoid
Nonessential Travel (March 17, 2020) https://wwwnc.cdc.gov/travel/notices/warning/coronavirus-cruise-ship.
\26\ U.S. Dept. of State, Bureau of Consular Affairs, Current
Outbreak of Coronavirus Disease 2019 (March 14, 2020) https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html.
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The Federal government announced guidelines stating that the public
should avoid discretionary travel; shopping trips; social visits;
gatherings in groups of more than 10 people; and eating or drinking at
bars, restaurants, and food courts.\27\ Numerous states and localities
have gone further and shut down restaurants, bars, nightclubs, and
theaters. For example, 6 counties surrounding San Francisco, California
have issued shelter in place orders impacting nearly 7 million
residents.\28\ Similar measures are being considered in other
cities.\29\
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\27\ The White House & Centers for Disease Control and
Prevention, 15 Days to Slow the Spread (Mar. 15, 2020), available at
https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirus-guidance_8.5x11_315PM.pdf.
\28\ Erin Allday, San Francisco Chronicle, Bay Area Orders
`Shelter in Place' Only Essential Businesses Open in 6 Counties
(Mar. 18, 2020), available at https://www.sfchronicle.com/local-politics/article/Bay-Area-must-shelter-in-place-Only-15135014.php.
\29\ Noah Higgins-Dunn & William Feuer, CNBC, New Yorkers Should
be Prepared for a `Shelter-In-Place,' Mayor Bill de Blasio says
(Mar. 18, 2020), available at https://www.cnbc.com/2020/03/17/new-yorkers-should-be-prepared-for-a-shelter-in-place-order-mayor-bill-de-blasio-says.html.
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2. COVID-19 Exists in Canada and Mexico
i. Persons From Canada and Other Foreign Countries Where COVID-19
Exists Cross Into the United States From Canada Frequently
As of March 17, 2020, Canada has reported 424 confirmed cases of
COVID-19, of which the Canadian government believes 74% are travel-
related with an additional 6% being close contacts of travelers.\30\
This is a 115% increase in confirmed cases in four days.\31\ The
provinces of Ontario and British Columbia have reported the most COVID-
19 cases, with Ontario reporting a 29% increase in confirmed cases in a
single day.\32\ Canada's Chief Public Health Officer stated that
community transmission of COVID-19 is occurring in multiple provinces
and Ottawa public health officials believe that there are at least
1,000 undiagnosed cases in the Canadian capital alone.\33\ In an effort
to slow the transmission and spread of the virus, the Canadian
government banned foreign nationals from all countries except the
United States from entering Canada and mandated that returning
Canadians self-monitor for COVID-19 symptoms for 14 days following
their return, effective March 18, 2020.\34\
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\30\ Government of Canada, Coronavirus disease (COVID-19):
Outbreak update (Mar. 15, 2020), https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection.html.
\31\ National Post, The Latest Numbers of COVID-19 Cases in
Canada as of March 13, 2020 (Mar. 13, 2020), available at https://nationalpost.com/pmn/news-pmn/canada-news-pmn/the-latest-numbers-of-covid-19-cases-in-canada-as-of-march-13-2020.
\32\ Ryan Rocca, Global News, Coronavirus: Ontario reports 39
new COVID-19 cases, provincial total rises to 142 (Mar. 15, 2020),
https://globalnews.ca/news/6679409/ontario-coronavirus-update-march-15/?utm_source=site_banner.
\33\ Adam Miller, Canadian Broadcast Corporation, `The Time is
Now to Act': COVID-19 spreading in Canada With no Known Link to
Travel, Previous Cases (Mar. 16, 2020), available at https://www.cbc.ca/news/health/coronavirus-community-transmission-canada-1.5498804; CBC News, Canadian Broadcast Corporation, Community
Spread of COVID-19 in Ottawa Likely, Says OPH (Mar. 15, 2020),
available at https://www.cbc.ca/news/canada/ottawa/5-new-covid-cases-ottawa-1.5498489.
\34\ Government of Canada, Coronavirus disease (COVID-19):
Canada's Response, At Canadian Borders (Mar. 16, 2020), available at
https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/canadas-reponse.html#acb.
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The United States and Canada share the longest international border
in the world, spanning approximately 3,987 (largely unfenced) miles
with 119 ports of entry.\35\
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\35\ Janice Cheryh Beaver, Congressional Research Service, U.S.
International Borders: Brief Facts (Feb. 1, 2007), available at
https://www.everycrsreport.com/files/20070201_RS21729_514d6fe01555a06aa58c33fd1d8cf34ad1dc50f8.pdf.
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In 2017, approximately 33 million individuals crossed the Canadian
border into the United States.\36\ Through February of Fiscal Year (FY)
2020, DHS has processed 20,166 inadmissible aliens at POEs at the U.S.-
Canadian border, and CBP has apprehended 1,185 inadmissible aliens
attempting to unlawfully enter the United States between POEs.\37\
These aliens have included not only Canadian nationals, but also 1,062
Iranian nationals, 1,396 Chinese nationals, and 1,326 nationals of
Schengen Area countries--all of which currently have COVID 19
outbreaks. Indeed, the United States government has determined that
China, Iran, and the countries of the Schengen Area are experiencing
sustained person-to-person transmittal of the disease.\38\ As of March
15, 2020, the WHO reports that China has 81,048 confirmed cases and
3,204 deaths; Iran has 12,729 confirmed cases and 608 deaths \39\; and
the Schengen Area has almost 42,000 confirmed cases.\40\ The total
number of COVID-19 infections in these countries is impracticable to
quantify due to the inherent limitations of epidemiological
surveillance, but are likely higher than the reported number of
confirmed cases
[[Page 17064]]
because COVID-19 can be present in asymptomatic persons.
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\36\ Les Perreaux, The Globe and Mail, Rejection Rate on the
Rise for Canadians at U.S. Border (Apr. 14, 2017), available at
https://www.theglobeandmail.com/news/national/rejection-rate-on-the-rise-for-canadians-at-us-border/article34262237/.
\37\ Exhibits 2 and 3, attached.
\38\ The White House, Proclamation--Suspension of Entry as
Immigrants and Nonimmigrants of Certain Additional Persons Who Pose
a Risk of Transmitting 2019 Novel Coronavirus (Mar, 11, 2020),
available at https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-2019-novel-coronavirus/.
\39\ World Health Organization, Coronavirus Disease 2019 (COVID-
19) Situation Report--55 (Mar. 15, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200315-sitrep-55-covid-19.pdf?sfvrsn=33daa5cb_8.
\40\ Id.
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On March 18, 2020, the President announced that the United States
``will be, by mutual consent, temporarily closing our Northern Border
with Canada to non-essential traffic,'' and DHS will be issuing
guidance on the implementation of that arrangement, including
exceptions for ``essential travels.''
ii. Mexico Expects Community Transmission of COVID-19 and Has Been
Slower To Implement Public Health Measures
According to WHO, as of March 17, 2020, Mexico has only 53
confirmed cases of COVID-19, all found to be travel related, and no
deaths.\41\ Some Mexican public health experts believe the number of
COVID-19 cases in the country is much higher and that Mexico will see
widespread community transmission of the virus in the near future.\42\
A Deputy Health Minister in Mexico has attributed Mexico's low number
of confirmed cases to the virus having been first detected in Mexico on
February 27, 2020, approximately one month after the first confirmed
cases in the United States.\43\ The same official also stated that,
based on the Mexican government's modeling, Mexico expects community
transmission of COVID-19 to begin between 15 and 40 days from the first
confirmed case (in other words, as early as March 13, 2020).\44\
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\41\ Id. World Health Organization, Coronavirus Disease 2019
(COVID-19) Situation Report--57 (Mar. 17, 2020), available at
https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200317-sitrep-57-covid-19.pdf?sfvrsn=a26922f2_4.
\42\ Andrea Ano, Latin Post, Experts Question Mexico's
Coronavirus Preparations (Mar. 15, 2020), available at http://www.latinpost.com/articles/144156/20200315/experts-question-mexicos-coronavirus-preparations.htm; Mexico News Daily, One Former Health
Minister Critical of Coronavirus Response (Mar. 14, 2020), available
at https://mexiconewsdaily.com/news/former-health-secretary-critical-of-coronavirus-response/.
\43\ Mexico News Daily, Why so few Cases of Coronavirus? Deputy
Minister Explains In Other Countries the Disease was Detected
Earlier (Mar. 13, 2020), available at https://mexiconewsdaily.com/news/why-so-few-cases-of-coronavirus-deputy-minister-explains/.
https://mexiconewsdaily.com/news/why-so-few-cases-of-coronavirus-deputy-minister-explains/.
\44\ Mexico News Daily, Business Insider, A Widespread Outbreak
of Coronavirus in Mexico is 'Inevitable,' Health Officials Say (Mar.
13, 2020), available at https://www.businessinsider.com/widespread-outbreak-of-coronavirus-in-mexico-is-inevitable-2020-3. https://www.businessinsider.com/widespread-outbreak-of-coronavirus-in-mexico-is-inevitable-2020-3.
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Mexico is only now undertaking some of the public health measures
to mitigate the spread of the virus.\45\ Schools will be closed from
March 20 until April 20, and some large public events are being
cancelled.\46\ However, many events, such as professional soccer games,
have gone forward as planned.\47\ Mexico has not announced any
restrictions on persons entering the country from areas with sustained
human-to-human transmission of the disease.\48\ There are currently no
COVID-19 health screenings at Mexico's international airports, although
Mexican officials have announced that some additional screening
measures may be implemented.\49\ Medical experts believe that community
transmission and spread of COVID-19 at asylum camps and shelters along
the U.S. border is inevitable, once community transmission begins in
Mexico.\50\
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\45\ Patrick J. McDonnell, Katie Linthicum, Tracy Wilkinson,
L.A. Times, Mexico, Latin America Gear up for Next Phase of
Coronavirus Threat (Mar. 14, 2020), available at https://www.latimes.com/world-nation/story/2020-03-14/mexico-latin-america-gear-up-for-next-phase-of-coronavirus-threat; cf Dave Graham,
Reuters, Mexico Government Urges Public to Keep Distance Over
Coronavirus; President Embraces Crowds (Mar. 15, 2020), available at
https://www.reuters.com/article/us-health-coronavirus-mexico/mexico-government-urges-public-to-keep-distance-over-coronavirus-president-embraces-crowds-idUSKBN2130A0.
\46\ Alexis Ortiz & Karla Linares, El Universal, COVID-19:
Mexico to Suspend Classes Over Coronavirus Concerns (Mar. 14, 2020),
available at https://www.eluniversal.com.mx/english/covid-19-mexico-suspend-classes-over-coronavirus-concerns.
\47\ Kirk Semple, The N.Y. Times, `We Call for Calm': Mexico's
Restrained Response to the Coronavirus (Mar. 15, 2020), available at
https://www.nytimes.com/2020/03/15/sports/soccer/soccer-mexico-coronavirus.html.
\48\ Wendy Fry, The San Diego Union-Tribune, While Impacts of
Coronavirus Remain Mild in Baja California, Mexico Begins Bracing
for Outbreak (Mar. 13, 2020), available at https://www.sandiegouniontribune.com/news/border-baja-california/story/2020-03-13/impacts-of-coronavirus-remain-mild-in-baja-california.
\49\ Id.
\50\ Rick Jervis, USA Today, Migrants Waiting at U.S.-Mexico
Border at Rick of Coronavirus, Health Experts Warn (Mar. 17, 2020),
available at https://www.usatoday.com/story/news/nation/2020/03/17/us-border-could-hit-hard-coronavirus-migrants-wait-mexico/5062446002/; Rafael Carranza, AZ Central, New World's Largest Border
Crossing, Tijuana Shelters Eye the new Coronavirus with Worry (Mar.
14, 2020), available https://www.azcentral.com/story/news/politics/immigration/2020/03/14/tijuana-migrant-shelters-coronavirus-covid-19/5038134002/.
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Mexico has fewer health care resources than the United States.
Mexico's total expenditure on health care per capita is $1,122,
compared to the United States' $9,403 per person.\51\ On average, there
are only 1.38 available hospital beds per every 1,000 inhabitants in
Mexico, compared to 2.77 available hospital beds per every 1,000
inhabitants in the United States.\52\ Similarly, there are
approximately 2.2 practicing doctors and 2.9 practicing nurses per
every 1,000 inhabitants in Mexico, compared to 2.6 practicing doctors
and 8.6 practicing nurses per every 1,000 inhabitants in the United
States.\53\ This raises public health concerns, given that Mexico is
likely to reach community transmission soon (including in asylum camps
and shelters).
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\51\ Compare WHO, Mexico--Statistics, https://www.who.int/countries/mex/en/, with WHO, United States of America--Statistics,
https://www.who.int/countries/usa/en/.
\52\ See Organization for Economic Co-operation and Development
(``OECD''), Data--Hospital Beds, https://data.oecd.org/healtheqt/hospital-beds.htm.
\53\ Compare The World Bank, Data--Physicians (per 1,000
people), https://data.worldbank.org/indicator/SH.MED.PHYS.ZS, with
The World Bank, Data--Nurses and Midwives (per 1,000 people),
https://data.worldbank.org/indicator/SH.MED.PHYS.ZS.
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While Mexico responded vigorously to the H1N1 pandemic in 2009-
2010, Mexico does not appear to be approaching the COVID-19 pandemic
with the same dispatch. In 2003, Mexico established the National
Preparedness and Response Plan for an Influenza Pandemic, which was
first tested during the 2009 outbreak of H1N1 influenza. Mexico helped
contain that outbreak, primarily through early detection of the
outbreak, followed by the declaration of a ``sanitary emergency'' that
focused on raising public awareness of the need to contain the spread
with proper hygiene, school closings, cancellation of large public
gatherings, and aggressive surveillance through widespread testing.\54\
Mexico does not appear to have undertaken equivalent measures in
response to the COVID-19 pandemic. COVID-19 is more infectious than
H1N1, and so CDC expected a more vigorous Mexican response to COVID-19,
which has not occurred.
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\54\ See Jose A. Cordova-Villalobos et al., The influenza A
(H1N1) epidemic in Mexico: Lessons learned, Health Research Policy &
Systems 7:21 (Sept. 28, 2009); Gerardo Chowell, Characterizing the
Epidemiology of the 2009 Influenza A/H1N1 Pandemic in Mexico, PLOS
Med 8(5): e1000436 (May 24, 2011).
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It also bears noting that Mexico struggled to mobilize its
strategic stockpile of the antiviral drug Oseltamivir during the 2009-
2010 H1N1 outbreak.\55\ The entire strategic stockpile was centrally
stored as dry bulk product, and the national pandemic preparedness plan
called for the dry bulk to be distributed to and reconstituted by
Mexico's 31 state-level public health laboratories.\56\ After the onset
of the outbreak, Mexican authorities realized that the network of
[[Page 17065]]
labs they intended to rely on were not properly equipped or authorized
to prepare the antiviral medication, leading to complications in
implementing the planned response.\57\ A comparative assessment of
national pandemic preparedness plans found that Mexico's plan was
missing key annexes regarding case management, surveillance,
communication, laboratory sample and transport, public health measures,
and plans for private business.\58\ While no public health response is
perfect, and testing for COVID-19 has presented global challenges, the
experience of Mexican laboratories during the H1N1 outbreak raises
concerns about their current capabilities.
---------------------------------------------------------------------------
\55\ Luis Meave Gutierrez-Mendoza et al., Lessons from the
Field: Oseltamivir storage, distribution and dispensing following
the 2009 H1N1 influenza outbreak in Mexico, Bull World Health Organ,
90:782-787 (Aug. 17, 2012).
\56\ Id.
\57\ Id.
\58\ WHO, Comparative Analysis of National Pandemic Influenza
Preparedness Plans (Jan. 2011), available at https://www.who.int/influenza/resources/documents/comparative_analysis_php_2011_en/en/.
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The existence of COVID-19 in Mexico presents a serious danger of
the introduction of COVID-19 into the United States for these reasons,
and because the level of migration across the United States border with
Mexico is so high. The U.S.-Mexico border runs an estimated 1,933
miles.\59\ To date in fiscal year (FY) 2020, DHS has processed 34,141
inadmissible aliens at POEs along the border, and U.S. Border Patrol
has apprehended 117,305 aliens attempting to unlawfully enter the
United States between POEs, almost 110,000 of whom reported Mexican
citizenship.\60\ Over 15,000 were nationals of other countries that are
now experiencing sustained human to human transmission of COVID-19,
including approximately 1,500 Chinese nationals and 6,200 Brazilian
nationals.\61\
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\59\ Supra, note 36.
\60\ Exhibits 2 and 3, attached.
\61\ Id.
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3. Land POEs and Border Patrol Stations Are Congregate Settings That
Present Infection Control Challenges
CBP screens and processes millions of aliens who seek to enter the
United States legally each year at POEs, as well as apprehending,
screening, and processing the hundreds of thousands of aliens who
attempt to unlawfully enter the United States each year by crossing
between POEs. See Exhibits 2-3 (charts summarizing number of
apprehensions and inadmissible aliens in FY 2020, as of Mar. 3. 2020).
Apprehended aliens vary significantly by age and health status. At this
time, the majority tend to be adults between 25 and 40 years old, and
include those with chronic health problems such as diabetes and high
blood pressure (which are comorbidities known to increase the health
risks associated with COVID-19 infections and, thus, the likelihood of
requiring medical intervention after infection).\62\
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\62\ Supra, note 4.
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i. Covered Aliens in Land POEs Who CBP Screens and Processes for
Admissibility Spend Hours or Days in Congregate Areas
There are 328 land POEs along the northern and southern borders
operated by CBP. At land POEs, CBP screens and processes the millions
of U.S. citizens, lawful permanent residents, and other aliens who seek
to enter the United States from Canada and Mexico every year.
One of the CBP's critical functions at POEs is to screen and
process arriving aliens to determine whether they are admissible to the
United States. CDC understands from DHS that inadmissible aliens are
typically those who do not have proper travel documents to enter or
whose entry is otherwise contrary to law, such as those who are
interdicted attempting to smuggle contraband into the United States. It
takes CBP much longer to screen inadmissible aliens than U.S. citizens,
lawful permanent residents, and aliens with valid travel documents, all
of whom tend to move quickly into the United States after contact with
CBP personnel and other travelers at POEs. This difference is due in
part to the fact that inadmissible aliens tend to arrive by foot (not
vehicle), and lack documentation. Inadmissible aliens in land POEs may
spend hours or days in congregate areas while undergoing processing.
During that time, they are in close proximity to CBP personnel and
other travelers, including U.S. citizens and other aliens.
The admissibility of each alien is determined by a CBP officer. As
part of the current admissibility screening, aliens are subject to an
initial set of questions designed to elicit their risk factors for
various contagious diseases, including COVID-19. Questions would
include recent travel and any physical symptoms they are experiencing.
CBP officers also use this initial questioning to visually observe
arrivals for any obvious signs of illness. Those whose appearance or
responses indicate possible exposure to or infection with COVID-19 are
directed to don a surgical mask, and are escorted by a CBP officer
(also wearing a surgical mask) for further evaluation and risk
assessment by the contract medical staff, which is conducted in a
designated area within the POE.
Presently, if CBP determines that an alien may be exposed to or
infected with COVID-19, the alien is escorted to a separate, enclosed
waiting area (usually a small holding room adjacent to normal
processing areas) while CBP alerts the relevant health authorities.
Specifically, CBP notifies the local health department, CDC, and CBP's
Senior Medical Advisor. Local health officials and possibly CDC
personnel if available, then consult with CBP to determine whether the
individual should be tested for COVID-19 and where that testing should
occur. CBP follows guidance from CDC and local health officials
regarding transport to the testing site. If the alien is sent for
testing in an ambulance, a CBP officer will accompany the individual in
the ambulance. If CBP vehicles are used for transport, they are
disinfected afterwards. In addition, CBP will consult with U.S.
Immigration and Customs Enforcement (ICE) officials regarding the
transport of the alien outside of the POE, given that the individual
leaving the CBP facility does not have a preexisting legal right to
enter the United States and must remain in custody while testing and
treatment is carried out.
These infection control procedures are not easily scalable for
large numbers of aliens. Moreover, an influx of infected, asymptomatic
aliens would present significant infection control challenges for CBP,
as the screening of such an aliens may not prompt testing. The aliens
would remain in congregate areas in the POE while CBP finishes the
screening and processing. During that time, the alien could infect CBP
personnel or other aliens with COVID-19.
ii. Border Patrol Stations Present Greater Infection Control Challenges
Than POEs Because They Often Have Less Space and Fewer Resources
In addition to the 328 POEs, CBP operates a network of Border
Patrol stations to apprehend, process, and temporarily hold aliens
seeking to unlawfully enter the United States between POEs. CBP has a
total of 136 Border Patrol stations along the land and coastal borders,
and many Border Patrol stations, particularly along the Southwest
border, are in remote locations.
Border Patrol stations vary significantly in terms of size and
layout, but generally have several congregate holding areas where
covered aliens are divided based on demographic factors such as age,
gender, and family status,
[[Page 17066]]
as required by law. A typical Border Patrol station is designed to
temporarily hold a maximum of 150 to 300 people standing shoulder-to-
shoulder, and has between two to five separate holding areas that can
be used to segregate adult males, adult females, unaccompanied
children, and family units, with possible further subdivision for
female- and male-led family units. The subdividing of aliens is crucial
to maintaining order and safety inside the Border Patrol stations
because the experience of CBP is that certain cohorts of covered aliens
are antagonistic towards one another. On average, a covered alien
apprehended between POEs will spend approximately 78 hours in a Border
Patrol station before transfer to ICE.
Only 46 of the 136 Border Patrol stations offer any medical
services. The services that are offered are administered by contract
medical support and are limited to glucose, pregnancy, influenza
testing, and basic emergency care. The 46 facilities are all located on
the southwest border with Mexico.
As discussed more fully below, the infection control challenges in
Border Patrol stations can be greater than the challenges in POEs,
especially when the Border Patrol stations are at or near capacity.
This is because covered aliens are in close proximity with one another
and CBP personnel, and there is typically no suitable space for
quarantining, isolating, or engaging in social distancing with aliens.
iii. The United States Public Health Service (USPHS) Observed Infection
Control Challenges During a Site Visit to El Paso del Norte POE
On March 12-13, 2020, a USPHS Scientist officer conducted an
observational visit to the El Paso del Norte POE (El Paso PDN). The
USPHS Scientist officer viewed directly the areas within the POE that
CBP uses to screen and process aliens for admissibility. (Exhibit 1).
El Paso PDN is one of the country's busiest border crossings, with
more than 10 million people entering the United States from Mexico
every year. It receives a constant, heavy inflow of pedestrian and
vehicular traffic, consisting of approximately 12,000 pedestrians and
6,000 vehicles per day. El Paso PDN operates 24/7, with a 3-4 person
team of contract medical staff who work 12 hour shifts and provide 24/7
coverage. The medical team is typically led by a nurse practitioner or
physician assistant, with the remaining team members consisting of
emergency medical technicians (EMT) or registered nurses.
El Paso PDN adheres to the general process for screening and
processing covered aliens described in Sec. II.3.i above. In terms of
medical capabilities, El Paso PDN performs on-site testing only for
pregnancy, blood glucose levels, and Influenza A/B. Any other testing
or treatment is performed by nearby medical providers. El Paso PDN is
representative of other POEs in that it is heavily reliant on local and
regional hospitals and EMT services to care for aliens. El Paso PDN has
several small waiting rooms that are used to isolate individuals
suspected of exposure to or infection with a contagious disease. Each
room can fit approximately 6-7 people, and is equipped with windows to
permit observation of the rooms' occupants, and locks to prevent them
from leaving.
Facility staff indicated they have been fit-tested for N95
respirators, receive biannual N95 training, and that the facility has
an approximately 30-day regular use supply of N95 respirators for use
by CBP personnel. El Paso PDN has not encountered any suspected COVID-
19 cases, but does not currently perform COVID-19 testing.
The site was selected by CBP because it is of one of CBP's largest
and best equipped POEs on the Southwest Border. Other POEs have fewer
capabilities.
The USPHS Scientist officer observed that even at El Paso PDN,
covered aliens would present infection control challenges during
processing and screening in congregate areas.
III. The Introduction Into DHS Facilities of Persons From Countries
With COVID-19 Would Increase the Already Serious Danger of COVID-19 in
the Facilities
1. POEs and Border Patrol Stations Are Not Structured or Equipped to
Effectively Mitigate the Risks Presented by COVID-19
The time required to test for COVID-19 dictates, at least in part,
the infection control measures that DHS would have to implement at POEs
and Border Patrol stations to effectively mitigate the public health
risks presented by covered aliens suspected of harboring or being
infected with COVID-19. At this time, there is no available COVID-19
test that yields results at the time of sample collection, such as the
rapid testing available for certain influenza strains that yields
results in as little as 15 minutes. Nor is there a COVID-19 test that
has been cleared for use in a non-clinical setting such as a POE or a
Border Patrol station lacking isolation capabilities. Rather, current
COVID-19 testing would require the collection of samples from aliens
suspected of infection and the mailing of the samples to a laboratory
for analysis, with results available within 3-4 days. In theory, to
mitigate public health risks, CBP would have to transport aliens in
their custody suspected of COVID-19 infection to a nearby medical site
for sample collection and testing, and then implement containment
protocols (i.e., quarantine or isolation) in their facilities while
awaiting test results. CDC would not have the resources or personnel
required to house in quarantine or isolation or monitor dozens, much
less hundreds or thousands of aliens. The burden would shift to state
and local governments, and it seems equally unlikely to CDC that they
could collectively implement such a massive public health initiative
under current conditions.
POEs and Border Patrol stations are not structured or equipped to
implement quarantine, isolation, or social distancing protocols on site
for COVID-19 for even small numbers of aliens, much less dozens or
hundreds of them together with CBP personnel. In particular, POEs and
Border Patrol stations were designed for the purpose of short-term
holding in a congregate setting. The vast majority of those facilities
lack the areas needed to effectively quarantine or isolate aliens for
COVID-19 while test results are pending. Moreover, the process for
screening and ultimately quarantining or isolating aliens suspected of
COVID-19 infection would require the alien to move throughout various
sections of the facility, creating a risk of exposure to all nearby--
including DHS personnel and other aliens.\63\
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\63\ The use of congregate holding areas for quarantine or
isolation would present a significant risk of transmitting COVID-19
for obvious reasons. Even if a congregate holding area were used to
try to quarantine or isolate a single alien, it would significantly
limit the facility's overall holding capacity, and potentially
increase the public health risks in other congregate holding areas
(if any space were left at all, after subdividing demographics).
---------------------------------------------------------------------------
Because POEs and Border Patrol stations are not structured or
equipped for quarantine or isolation for COVID-19, DHS's alternative
would be to try to conduct some type of social distancing in congregate
holding areas. The numbers of aliens and the size and capacity of the
congregate holding areas are not at all conducive to effective social
distancing, which requires individuals to maintain a distance of at
least six feet from each other, and to avoid contact with shared
surfaces. The
[[Page 17067]]
typical dimensions of the congregate areas at POEs and Border Patrol
stations would not provide sufficient space if more than a handful of
individuals were present in congregate areas (which is typically the
situation). Such an approach would be fraught with public health risks
for not only the aliens but also DHS personnel nearby.
CDC also has a public health tool called conditional release, which
involves the release of potentially infected individuals from federal
custody subject to conditions calculated to mitigate the risk of
disease transmission, such as mandatory self-isolation and CDC
monitoring at home. Conditional release is not a viable solution in
this context because many aliens covered by this order may lack homes
or other places in the United States where they can self-isolate, and
CDC lacks the resources and personnel necessary to effectively monitor
such a large number of persons. Reliance on the conditional release
mechanism in this context would jeopardize, not protect, the public
health.
2. POEs and Border Patrol Stations Are Not Structured or Equipped to
Safely House or Care for Aliens Infected With COVID-19
POEs and Border Patrol stations would lack the capacity to provide
the medical monitoring and care that would be needed by covered aliens
confirmed to be infected with COVID-19. Only a few facilities offer
medical services directly, and the medical services that are provided
are limited to care for minor ailments, basic emergency care, or the
on-site administration of prophylaxis for seasonal influenza (i.e.,
Tamiflu). The facilities are heavily reliant on local and regional
hospitals and emergency medical system (EMS) resources.
Moreover, many of the facilities are geographically remote and far
from the major medical centers or hospital systems equipped to handle
COVID-19 outbreaks. Infected covered aliens would either have to be
transported tens or hundreds of miles to the nearest appropriately
equipped medical center, or brought to smaller local providers who
might lack the resources or capacity to accept COVID-19 cases involving
covered aliens. Indeed, U.S. states along the border with Mexico have
some of the lowest number of hospital beds per 1,000 inhabitants in the
United States.\64\ Arizona, California, and Texas also have some of the
largest numbers of residents living in primary care shortage areas of
any U.S. states or territories.\65\ The shift of healthcare resources
to large numbers of infected, covered aliens would divert the same
resources away from the domestic population, which would undermine the
Federal response to COVID-19. It would also increase the risk of
exposure to COVID-19 for domestic healthcare workers. Such a scenario
is not tenable given the current nationwide public health emergency.
---------------------------------------------------------------------------
\64\ Arizona has 1.9 hospital beds per 1,000 inhabitants;
California has 1.8; New Mexico has 1.8, and Texas has 2.3. Kaiser
Family Foundation, State Health Facts: Hospitals Per 1,000
Population by Ownership Type (2018), available at https://www.kff.org/other/state-indicator/beds-by-ownership/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Total%22,%22sort%22:%22asc%22%7D.
\65\ Kaiser Family Foundation, State Health Facts: Primary Care
Health Professional Shortage Areas (HPSAs) (Sept. 30, 2019),
available at https://www.kff.org/other/state-indicator/primary-care-health-professional-shortage-areas-hpsas/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Percent%20of%20Need%20Met%22,%22sort%22:%22asc%22%7D.
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IV. Determination and Implementation
Based on the foregoing, I find there is a serious danger of the
introduction of COVID-19 into the POEs and Border Patrol stations at or
nearby the United States borders with Canada and Mexico, and the
interior of the country as a whole, because COVID-19 exists in Canada,
Mexico, and the countries or places of origin of the covered aliens who
migrate to the United States across the land borders with Canada and
Mexico. I also find that the introduction into POEs and Border Patrol
stations of covered aliens increases the seriousness of the danger to
the point of requiring a temporary suspension of the introduction of
covered aliens into the United States.
It is necessary for the public health to immediately suspend the
introduction of covered aliens. The immediate suspension of the
introduction of these aliens requires the movement of all such aliens
to the country from which they entered the United States, or their
country of origin, or another location as practicable, as rapidly as
possible, with as little time spent in congregate settings as
practicable under the circumstances. The faster a covered alien is
returned to the country from which they entered the United States, to
their country of origin, or another location as practicable, the lower
the risk the alien poses of introducing, transmitting, or spreading
COVID-19 into POEs, Border Patrol stations, other congregate settings,
and the interior.
My determinations are based on information provided to CDC by DHS
personnel regarding DHS border operations and facilities; the report of
the observational visit to the El Paso PDN conducted by the USPHS
Scientist officer; figures on the numbers of apprehensions at the
United States borders with Canada and Mexico of aliens from countries
where COVID-19 exists; information from the public domain; and my own
personal knowledge and experience.
I consulted with DHS before I issued this order, and requested that
DHS implement this order because CDC does not have the capability,
resources, or personnel needed to do so. As part of the consultation,
CBP developed an operational plan for implementing the order.
Accordingly, DHS will, where necessary, use repatriation flights to
move covered aliens on a space-available basis, as authorized by law.
The plan is generally consistent with the language of this order
directing that covered aliens spend as little time in congregate
settings as practicable under the circumstances. In my view, it is also
the only viable alternative for implementing the order; CDC's other
public health tools are not viable mechanisms given CDC resource and
personnel constraints, the large numbers of covered aliens involved,
and the likelihood that covered aliens do not have homes in the United
States.\66\
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\66\ CDC relies on the Department of Defense, other federal
agencies, and state and local governments to provide both logistical
support and facilities for federal quarantines. CDC lacks the
resources, manpower, and facilities to quarantine covered aliens.
Similarly, DHS has informed CDC that in the near term, it is not
financially or logistically practicable for DHS to build additional
facilities at POEs and Border Patrol stations for use in quarantines
or isolation. Certain soft-sided facilities may be inappropriate for
use in quarantines or isolation. DHS would need at least 90 days
(likely more) to build and start bringing hard-sided facilities
online. Such an approach would not help address the current public
health emergency presented to the Federal government today.
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This order is not a rule within the meaning of the Administrative
Procedure Act (APA). In the event this order qualifies as a rule under
the APA, notice and comment and a delay in effective date are not
required because there is good cause to dispense with prior public
notice and the opportunity to comment on this order and a delay in
effective date. Given the public health emergency caused by COVID-19,
it would be impracticable and contrary to the public health--and, by
extension, the public interest--to delay the issuing and effective date
of this order. In addition, because this order concerns the ongoing
discussions with Canada and Mexico on how best to control COVID-19
transmission over our shared border, it directly ``involve[s] . . . a .
. .
[[Page 17068]]
foreign affairs function of the United States.'' 5 U.S.C. 553(a)(1).
Notice and comment and a delay in effective date would not be required
for that reason as well.
* * * * *
This order shall remain effective for 30 days, or until I determine
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. I may extend or modify this order as needed to
protect the public health.
Exhibit 1
Date: March 14, 2020.
To: RADM Sylvia Trent-Adams, Principal Deputy Assistant Secretary
for Health, Office of the Assistant Secretary for Health (OASH); RADM
Erica Schwartz, Deputy Surgeon General, Office of the Surgeon General,
OASH.
From: CAPT Mehran S. Massoudi, Regional Health Administrator,
Region VI, OASH.
RE: Report of Observational Visit to the DHS El Paso Paso del Norte
Port of Entry.
Mission: Observe normal work flow process and personnel traffic at
the El Paso Paso del Norte Port of Entry and assess possible public
health risks or vulnerabilities posed by the Coronavirus Disease
(COVID-19) at Department of Homeland Security (DHS) border facilities.
On March 12-13, 2020, I traveled to El Paso Paso del Norte (PDN)
Port of Entry and met with Port Director Good, Watch Commander Alvarez,
Watch Commander Gomez, and Supervisor Officer Rivas.
The site I visited was selected by the Customs and Border Patrol
(CBP) Senior Medical Advisor Dr. Tarantino. It was intended to serve as
an example of one of CBP's largest and best-equipped Ports of Entry
(POEs) on the Southwest Border, not a representative of other POEs
across the country.
The El Paso PDN is one of the country's busiest border crossings,
and sees approximately 10 million people entering the United States
from Mexico annually. The El Paso PDN processes a flow of approximately
12,000 pedestrians and approximately 6-8,000 vehicles per day. Field
statistics for FY19 and Jan. 2020 were supplied by the Public Affairs
and Community Liaison Director, El Paso Field Office and are attached
to this report, as Attachments A and B, respectively. The location is
staffed by CBP officers 24/7 working 8 hour shifts. In addition, the
facility has 24/7 coverage by a third party contracted Medical Team
comprised of 3-4 members, led by a nurse practitioner or physician
assistant, with the rest of the team comprised of emergency medical
technicians or Registered Nurses.
There are two points of entry into PDN: a pedestrian and vehicular
mode. Both are staffed by the same CBP officers from El Paso. Each
person seeking entry to the United States at PDN is asked a series of
questions upon encountering the CBP officer, including the travel-
related COVID-19 screening questions. Officers use visual cues as well
as responses to the screening questions to determine the level of risk
of COVID-19 infection. If CBP officers suspect any level of risk or
signs/symptoms of illness, they put on a surgical mask (CBP officers
wear gloves as a normal practice) and give a surgical mask to the
individual as well. The officer would then escort the individual to an
area where the officer would first inspect the individual for anything
that could be used as a weapon, and then fingerprint the individual (if
applicable). The individual would then be triaged to an area where they
would be administered a 13-part questionnaire, with a series of
questions added about COVID-19 by the third party contract Medical
Team. The questionnaire is attached as Attachment C.
If an individual is determined to be at risk of COVID-19, the
individual is escorted to one of several small waiting rooms, each with
a window and locked door, while the local health department, Centers
for Disease Control and Prevention (CDC), and CBP's Senior Medical
Advisor are notified. Local health officials and/or CDC would then be
consulted to determine next steps with respect to testing and/or
treatment for COVID-19.
If testing is recommended, then CBP will follow guidance from CDC
and local health officials about which third party hospital to
transport the individual. If the individual is sent for testing in an
ambulance, a CBP officer will accompany the individual inside the
ambulance. In addition, CBP will consult with Immigration and Customs
Enforcement (ICE) officials if the individual leaving the CBP facility
has not yet been processed and so must remain in custody.
CBP personnel informed me that the same basic process described
above would be applied to those who arrived on foot or by vehicle--
provided the individual provided a response to the screening questions
indicative of COVID-19 exposure/infection or appeared to exhibit signs/
symptoms of the disease requiring a medical consult for further
evaluation and possible testing.
Key Observations:
All CBP officers are fit-tested twice a year for N-95
respirators, but when asked and observed, only surgical masks were
identified for use. I was told that the N-95 respirators would be used
when there is a declaration of a pandemic or when they are told to use
them. Leadership at the site said that they have approximately a 30-day
supply of N-95 respirators on hand at the PDN sites. I observed that
all CBP officers had a box of gloves and a box of N-95 respirators by
their feet behind their workstations.
The CDC Quarantine Station in El Paso makes routine visits
to stop by and answer any questions and provide any updates as needed
for the CBP officers. The CBP officers carry a small, two-sided
laminated card with key evaluation criteria. The card is attached as
Attachment D.
Observed color-posters of CDC COVID-19 awareness messaging
on walls throughout the facility.
The third party contract Medical Team performs only a
small number of tests on-site (rapid Influenza A/B, pregnancy, and
glucose). Tests for other conditions, particularly other contagious
diseases like measles, are performed off-site at a third part medical
facility.
If an individual is suspected of having an infectious
disease or needs to be held for a short period of time, they are put in
a small room with a window and a locked door, adjacent to the CBP
officers' work-area. This is not an isolation room because the HVAC
system is shared with the rest of the facility, and does not have
adequate capabilities to contain COVID-19 (i.e., negative pressure,
HEPA filtration). Escorting a contagious individual to and from this
room, as well as holding them there, poses a significant risk of
exposing nearby CBP personnel.
If an individual actually infected with COVID-19 were
subject to the above screening processes, they would be maneuvered
throughout various sections of the POE, creating a significant risk of
COVID-19 exposure to other aliens and CBP officers in the POE.
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BILLING CODE 4163-18-C
Authority
The authority for these orders is Sections 362 and 365 of the
Public Health Service Act (42 U.S.C. 265, 268).
Dated: March 20, 2020.
Robert K. McGowan
Chief of Staff, Centers for Disease Control and Prevention.
[FR Doc. 2020-06327 Filed 3-23-20; 3:15 pm]
BILLING CODE 4163-18-C
