Order Suspending the Right To Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists
| Published date | 16 October 2020 |
| Citation | 85 FR 65806 |
| Record Number | 2020-22978 |
| Section | Notices |
| Court | Centers For Disease Control And Prevention,Health And Human Services Department |
Federal Register, Volume 85 Issue 201 (Friday, October 16, 2020)
[Federal Register Volume 85, Number 201 (Friday, October 16, 2020)]
[Notices]
[Pages 65806-65812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22978]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Disease Control and Prevention
Order Suspending the Right To Introduce Certain Persons From
Countries Where a Quarantinable Communicable Disease Exists
AGENCY: Centers for Disease Control and Prevention (CDC), Department of
Health and Human Services (HHS).
ACTION: Notice.
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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 an Order suspending the right to introduce
certain persons into the United States from countries where a
quarantinable communicable disease exists. This Order is based on the
CDC Director's determination that introduction of aliens, regardless of
their country of origin, migrating through Canada and Mexico into the
United States creates a serious danger of the introduction of COVID-19
into the United States, and the danger is so increased by the
introduction of such aliens that a temporary suspension is necessary to
protect the public health.
DATES: This action took effect October 13, 2020.
FOR FURTHER INFORMATION CONTACT: Nina B. Witkofsky, 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: The Director of the CDC (Director) is
issuing 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,\1\ which authorize the Director of the Centers for Disease
Control and Prevention (CDC) to
[[Page 65807]]
suspend the right to introduce \2\ persons into the United States when
the Director determines that the existence of a quarantinable
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 the right of
such introduction is necessary to protect public health. This Order
replaces the Order Suspending Introduction of Certain Persons from
Countries Where a Communicable Disease Exists, issued on March 20, 2020
(March 20, 2020 Order), extended on April 20, 2020, and amended May 19,
2020, which were based on the prior interim final rule.\3\
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\1\ 85 FR 56424.
\2\ Suspension of the right to introduce means to cause the
temporary cessation of the effect of any law, rule, decree, or order
pursuant to which a person might otherwise have the right to be
introduced or seek introduction into the United States. 42 CFR
71.40(b)(5).
\3\ 85 FR 16559, 85 FR 17060, 85 FR 22424, 85 FR 31503.
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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 or coastal Port of Entry
(POE) or Border Patrol station at or near the United States borders
with Canada or Mexico, subject to the exceptions detailed below.
This Order does not apply to U.S. citizens and lawful permanent
residents; 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 any alien who must test
negative for COVID-19 before they are expelled to their home country.
Further, this Order does not apply to persons whom customs officers
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 at or 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.''
This Order, which is substantially the same as the amended and
extended March 20, 2020 Order, is necessary to continue to protect the
public health from an increase in the serious danger of the
introduction of Coronavirus Disease 2019 (COVID-19) into the 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 DHS. This Order
is intended to help mitigate the continued risks of 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 of the
United States; 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.\4\
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\4\ As of October 1, 2020, CBP has had 2,195 employees contract
COVID-19. In addition, 13 employees and one USBP transportation
contractor have died due to the virus. Any 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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There is a serious danger of the introduction of COVID-19 into the
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 and coastal borders with Canada and Mexico.
Those persons are subject to immigration processing in the 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 and coastal 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
right of introduction of such persons into the United States.
The public health risks of inaction 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 exposed to or infected with a quarantinable
communicable disease, nor are they capable of providing the level of
medical care that would be necessary in the cases of serious COVID-19
infection that occur with greater frequency in vulnerable populations
like the elderly and those with certain pre-existing conditions.
Indeed, CBP transfers persons with acute presentations of illness to
local or regional healthcare providers for treatment. Outbreaks of
COVID-19 in 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. 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.
Based on these ongoing concerns and to protect the public health, I
hereby suspend the introduction of all covered aliens into the United
States 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, and continuation of the Order is no longer necessary
to protect the public health. Every 30 days, CDC shall review the
latest information regarding the status of the COVID-19 pandemic and
associated
[[Page 65808]]
public health risks to ensure that the Order remains necessary to
protect the public health. Upon determining that the further
introduction of COVID-19 into the United States is no longer a serious
danger to the public health necessitating the continuation of this
Order, I will publish a notice in the Federal Register terminating this
Order and its Extensions. I may amend this Order as necessary to
protect the public health.
A copy of the Order is provided below and a copy of the signed
Order can be found at https://www.cdc.gov/coronavirus/2019-ncov/order-suspending-introduction-certain-persons.html.
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 the Right To Introduce Certain Persons From Countries
Where a Quarantinable 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,\5\ which authorize the Director of the Centers for Disease
Control and Prevention (CDC) to suspend the right to introduce \6\
persons into the United States when the Director determines that the
existence of a quarantinable 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 the right of such introduction is necessary to
protect public health. This Order replaces the Order Suspending
Introduction of Certain Persons from Countries Where a Communicable
Disease Exists, issued on March 20, 2020 (March 20, 2020 Order),
extended on April 20, 2020, and amended May 19, 2020, which were based
on the prior interim final rule.\7\
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\5\ 85 FR 56424, 42 CFR 71.40.
\6\ Suspension of the right to introduce means to cause the
temporary cessation of the effect of any law, rule, decree, or order
pursuant to which a person might otherwise have the right to be
introduced or seek introduction into the United States. 42 CFR
71.40(b)(5).
\7\ 85 FR 17060, 85 FR 22424, 85 FR 31503.
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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 or coastal Port of Entry
(POE) or Border Patrol station at or near the United States borders
with Canada or Mexico, subject to the exceptions detailed below.
This Order does not apply to U.S. citizens and lawful permanent
residents; members of the armed forces of the United States or U.S.
government personnel serving overseas, 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 any alien who must test negative for COVID-19 before they
are expelled directly to their home country. Further, this Order does
not apply to persons whom customs officers 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 at or 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.''
This Order, which is substantially the same as the amended and
extended March 20, 2020 Order, is necessary to continue to protect the
public health from an increase in the serious danger of the
introduction of Coronavirus Disease 2019 (COVID-19) into the 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 intended to help
mitigate the continued risks of 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 of the United States; 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.\8\
---------------------------------------------------------------------------
\8\ As of October 1, 2020, CBP has had 2,195 employees contract
COVID-19. In addition, 13 employees and one USBP transportation
contractor have died due to the virus. Any outbreak of COVID-19
among CBP personnel in land and coastal 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. borders and the
speed with which cargo moves across the same.
---------------------------------------------------------------------------
There is a serious danger of the introduction of COVID-19 into the
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 and coastal borders with Canada and Mexico.
Those persons are subject to immigration processing in the 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 and coastal 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
right of introduction of such persons into the United States.
The public health risks of inaction 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.
[[Page 65809]]
These risks are troubling because POEs and Border Patrol stations
were not designed and are not equipped to deliver medical care to
numerous persons exposed to or infected with a quarantinable
communicable disease, nor are they capable of providing the level of
medical care that would be necessary in the cases of serious COVID-19
infection that occur with greater frequency in vulnerable populations
like the elderly and those with certain pre-existing conditions.
Indeed, CBP transfers persons with acute presentations of illness to
local or regional healthcare providers for treatment. Outbreaks of
COVID-19 in 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. 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.
Based on these ongoing concerns and to protect the public health, I
hereby suspend the introduction of all covered aliens into the United
States 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, and continuation of the Order is no longer necessary
to protect the public health. Every 30 days, CDC shall review the
latest information regarding the status of the COVID-19 pandemic and
associated public health risks to ensure that the Order remains
necessary to protect the public health. Upon determining that the
further introduction of COVID-19 into the United States is no longer a
serious danger to the public health necessitating the continuation of
this Order, I will publish a notice in the Federal Register terminating
this Order and its Extensions. I may amend this Order as necessary to
protect the public health.
II. Factual Basis for Order 9
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\9\ 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 quarantinable 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). As of October 1, 2020,
there were over 34,103,279 cases of COVID-19 globally, resulting in
over 1,016,167 deaths.
COVID-19 spreads easily and sustainably within communities.\10\ The
virus is thought to transfer principally by person-to-person contact
through respiratory droplets produced during exhalation, such as
breathing, speaking, coughing, and sneezing. Droplets can span a wide
spectrum of sizes that can remain airborne from seconds for larger
droplets to several hours for smaller droplets and particles. The virus
may also transfer through contact with surfaces or objects contaminated
with these droplets.\11\ 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.\12\
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\10\ COVID-19 Pandemic Planning Scenarios, Ctrs. for Disease
Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/planning-scenarios.html, (last visited Oct. 3, 2020), (CDC estimates
that the viral transmissibility (R0) of COVID-19 is
around 2.5, but may be as high as 4, meaning that a single infected
person will on average infect between 2 to 4 others).
\11\ Interim Infection Prevention and Control Recommendations
for Healthcare Personnel During the Coronavirus Disease 2019 (COVID-
19) Pandemic, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-recommendations.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Finfection-control%2Fcontrol-recommendations.html
(last visited Sept. 29, 2020),
\12\ COVID-19 Pandemic Planning Scenarios, Ctrs. for Disease
Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/planning-scenarios.html, (last visited Sept. 29, 2020), (CDC's
current best estimate is that between 30 to 70% of infections are
transmitted prior to symptom onset (pre-symptomatic transmission)).
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Symptoms may include fever or chills, cough, and shortness of
breath or difficulty breathing, fatigue, muscle or body aches,
headache, new loss of taste or smell, sore throat, congestion or runny
nose, nausea or vomiting, and diarrhea, and typically appear 2-14 days
after exposure to the virus.\13\ Manifestations of severe disease have
included severe pneumonia, acute respiratory distress syndrome (ARDS),
septic shock, and multi-organ failure.\14\ Mortality rates are higher
among seniors and those with certain underlying medical conditions,
such as chronic obstructive pulmonary disease (COPD), serious heart
conditions, cancer, Type 2 diabetes, and those with compromised immune
systems.\15\
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\13\ Coronavirus Disease 2019 (COVID-19): Symptoms of
Coronavirus, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html
(last updated May 13, 2020).
\14\ Sevim Zaim, et al., COVID-19 and Multiorgan Response, 00
Current Problems in Cardiology 2020, (available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7187881/pdf/main.pdf).
\15\ Coronavirus Disease 2019 (COVID-19): People with Certain
Medical Conditions, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fneed;-extra-precautions%2Fgroups-at-higher-risk.html
(last updated Sept. 11, 2020).
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Unfortunately, at this time, there is no vaccine against COVID-19,
although several are in development. While U.S. Food and Drug
Administration (FDA) has not approved drugs to treat patients with
COVID-19 based on a demonstration of safety and efficacy in randomized
controlled trials, FDA has granted an Emergency Use Authorization for
the use of VEKLURY[supreg] (remdesivir) and other investigational
therapeutics in the treatment of COVID-19 infection. Beyond these
therapeutics, 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.
Global efforts to slow the spread of COVID-19 have included
sweeping travel limitations and lockdowns. Nations such as the European
Union (EU) Member States and Schengen Area countries,\16\ Australia,
New Zealand, and Canada have imposed restrictions on international
travelers.\17\ 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. For example, all returning citizens
and residents of Australia and New Zealand are subject to a mandatory
14-day quarantine at
[[Page 65810]]
designated secure facilities, such as a hotel at their port of
arrival.\18\
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\16\ Migration and Home Affairs: Schengen Area, Eur. Comm'n
(Jan. 1, 2020), https://ec.europa.eu/home-affairs/what-we-do/policies/order-and-visas/schengen_en (``Today, the Schengen Area [of
the EU] encompasses most EU States, except for Bulgaria, Croatia,
Cyprus, Ireland and Romania. However, Bulgaria, Croatia and Romania
are currently in the process of joining the Schengen Area. Of non-EU
States, Iceland, Norway, Switzerland and Liechtenstein have joined
the Schengen Area.''); Travel to and from the EU during the
pandemic: Travel restrictions, Eur. Comm'n, https://ec.europa.eu/info/live-work-travel-eu/health/coronavirus-response/travel-and-transportation-during-coronavirus-pandemic/travel-and-eu-during-pandemic_en (last visited Aug. 31, 2020).
\17\ See Andrea Salcedo, Sanam Yar, & Gina Cherelus, Coronavirus
Travel Restrictions, Across the Globe, N.Y. Times (July 16, 2020),
https://www.nytimes.com/article/coronavirus-travel-restrictions.html.
\18\ Id.; COVID-19 and the border: Travel restrictions, Cmlth.
of Austl, Dep't of Home Aff., https://COVID19.homeaffairs.gov.au/travel-restrictions-0 (last updated Aug. 28, 2020); COVID-19: New
Zealanders in the UK--Frequently Asked Questions, N.Z. Foreign Aff.
& Trade, https://www.mfat.govt.nz/en/countries-and-regions/europe/united-kingdom/new-zealand-high-commission/living-in-the-uk/COVID-19-coronavirus/ (last visited Aug. 28, 2020).
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2. The March 20, 2020 Order has reduced the risk of COVID-19
transmission in POEs and Border Patrol stations
I issued the March 20, 2020 Order pursuant to Sections 362 and 365
of the Public Health Service (PHS) Act, 42 U.S.C. 265, 268, and an
interim final rule implementing Section 362.\19\ The March 20, 2020
Order suspended the introduction of certain ``covered aliens'' into the
United States for a period of 30 days. The definition of ``covered
aliens'' in the March 20, 2020 Order is substantially the same as in
this Order. The March 20, 2020 Order was based on the following
determinations:
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\19\ 85 FR 16559.
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COVID-19 is a communicable disease that poses a danger to
the public health;
COVID-19 is present in numerous foreign countries,
including Canada and Mexico;
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 land borders with Canada and Mexico;
But for a suspension-of-entry order under 42 U.S.C. Sec.
265, covered aliens would be subject to immigration processing at the
land POEs and Border Patrol stations and, during that processing, many
of them (typically aliens who lack valid travel documents and are
therefore inadmissible) would be held in the congregate areas of the
facilities, in close proximity to one another, for hours or days; and
Such introduction into congregate settings of persons from
Canada or Mexico would increase the already serious danger to the
public health of the United States to the point of requiring a
temporary suspension of the introduction of covered aliens into the
United States.
The March 20, 2020 Order was extended on April 20, 2020 and amended
on May 19, 2020, to clarify that it applies to all land and coastal
POEs and Border Patrol stations \20\ at or near the United States'
border with Canada or Mexico that would otherwise hold covered aliens
in a congregate setting.\21\ Pursuant to the May 19, 2020 Amendment,
the March 20, 2020 Order was again extended with CDC thereafter
conducting reviews every 30 days.\22\ Upon conducting these reviews, I
have kept the amended Order in place; the current 30 day period lapses
on October 17, 2020.
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\20\ As explained below, air POEs are excluded from the Amended
Order and Extension because they do not present the same public
health risk as land and coastal POEs.
\21\ 85 FR 22424.
\22\ 85 FR 31503.
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In general, the federal government's overall experience under the
March 20, 2020 Order, together with the factual developments since May
20, 2020, sustain the policy rationales for issuing this Order.
Since the March 20, 2020 Order was issued, the daily average
population in CBP custody is 1,134 individuals. This is a 64% reduction
of daily in custody numbers since the March 20, 2020 Order went into
effect and a 67% reduction from the same period in 2019. In the 50 days
preceding the March 20, 2020 Order, CBP officers made over 1,600 trips
to community hospitals to facilitate advanced medical care for
individuals. For the first 80 days after the March 20, 2020 Order's
implementation, CBP made only 400 trips for individuals to receive
medical care from community hospitals. This represents a 75% decrease
in utilization. In the 60 days preceding September 16, 2020, CBP made
746 trips for individuals to receive medical care from community
hospitals. The increase in hospital utilization corresponds with a
month-over-month increase in CBP enforcement encounters, including
encounters with covered aliens who have subsequently tested positive
for COVID-19. The risks of COVID-19 transmission and overutilization in
community hospitals serving domestic populations would have been
greater absent the March 20, 2020 Order.
The March 20, 2020 Order has reduced the risk of COVID-19
transmission in POEs and Border Patrol stations, and thereby reduced
risks to DHS personnel and the U.S. health care system. The public
health risks to the DHS workforce--and the erosion of DHS operational
capacity--would have been greater absent the March 20, 2020 Order. DHS
data shows that the March 20, 2020 Order has significantly reduced the
population of covered aliens held in congregate settings in POEs and
Border Patrol stations, thereby reducing the risk of COVID-19
transmission for DHS personnel and others within these facilities.
By significantly reducing the number of covered aliens held in POEs
and Border Patrol stations, the March 20, 2020 Order reduced the
density of covered aliens held in congregate custody within these
facilities, which reduced the risk of exposure to COVID-19 for DHS
personnel and others in POEs and Border Patrol stations.
3. Conditions in Canada, Mexico, and the United States warrant issuing
this Order
COVID-19 has continued to spread since the March 20, 2020 Order.
Canada, Mexico, and the countries of origin of many of the individuals
who travel to the United States through Canada or Mexico continue to
see increasing numbers of COVID-19 infections and deaths.
i. Canada
As detailed in the March 20, 2020 Order, approximately 33 million
individuals crossed the Canadian border into the United States in 2017.
Historically, inadmissible aliens attempting to unlawfully enter the
United States from Canada have included not only Canadian nationals,
but also nationals of countries experiencing, or suspected of
experiencing, widespread COVID-19 transmission such as the member
countries of the Schengen Area, China, and Iran.\23\ From March through
August, 2020, CBP has processed 28,841 inadmissible aliens at POEs at
the U.S.-Canadian border, and CBP has apprehended 2,014 inadmissible
aliens attempting to unlawfully enter the United States between POEs,
of which DHS determined 1,126 were covered aliens subject to the March
20, 2020 Order.\24\
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\23\ U.S. Border Patrol Nationwide Apprehensions by Citizenship
and Sector in Fiscal Years 2007 to 2019, U.S. Border Patrol, U.S.
Dep't. of Homeland Security, https://www.cbp.gov/sites/default/files/assets/documents/2020-Jan/U.S.%20Border%20Patrol%20Nationwide%20Apprehensions%20by%20Citizenship%20and%20Sector%20%28FY2007%20-%20FY%202019%29_1.pdf (last visited
Oct. 9, 2020).
\24\ Nationwide Enforcement Encounters: Title 8 Enforcement
Actions and Title 42 Expulsions, U.S. Customs and Border Protection,
U.S. Dep't. of Homeland Security, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics
(last visited Oct. 9, 2020).
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As of October 6, 2020, Canada reported over 171,300 cases of COVID-
19 and over 9,500 confirmed deaths with a seven day average of 1,797
new
[[Page 65811]]
cases.\25\ In response to increases in the level of community
transmission, authorities in Toronto, Ottawa, and several other Ontario
cities have mandated indoor mask use. On September 19, 2020, Ontario
issued new restrictions limiting indoor gatherings to 10 people and
outdoor gatherings to 25.\26\ In Quebec masks have been mandated in all
indoor public places since July 27, 2020. In an effort to slow the
transmission and spread of the virus, the Canadian government banned
most foreign nationals from entry and mandated that returning Canadians
and excepted foreign nationals (including Americans) self-monitor for
COVID-19 symptoms for 14 days following their return.\27\ Canadian
public health officials have expressed alarm at the recent increase in
new COVID-19 cases after several months of low level community
transmission, particularly as Canada begins to enter influenza
season.\28\
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\25\ Coronavirus Disease (COVID-19): Outbreak Update, Gov't of
Can., https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection.html (last updated Oct. 6, 2020).
\26\ Reopening Ontario in Stages: Gathering Limits, Gov't of
Ontario, https://www.ontario.ca/page/reopening-ontario-stages#restrictions (last updated Oct. 2, 2020).
\27\ Travel Restriction Measures: COVID-19 Program Delivery
Travel Restriction Exemptions for Those Departing From a Country
Other Than the U.S., Gov't of Canada, https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/service-delivery/coronavirus/travel-restrictions.html#travel-restriction-exemptions (last updated Jul.
23, 2020).
\28\ Statement from the Chief Public Health Officer of Canada on
October 3, 2020, Gov't of Canada, https://www.canada.ca/en/public-health/news/2020/10/statement-from-the-chief-public-health-officer-of-canada-on-october-3-2020.html (last updated Oct. 3, 2020).
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ii. Mexico
As of October 1, 2020, Mexico has 738,163 confirmed cases, and
77,163 reported deaths.\29\ While Mexico's official statistics for
COVID-19 infections and number of deaths provide insights to general
trends, they have serious deficiencies that greatly understate actual
totals. COVID-19 infections and deaths are likely multiples of what is
reported as Mexico has the lowest diagnostic testing per capital of
OECD countries. Mexico's positivity rate is estimated to be around 44%
based on confirmed positive cases, confirmed negative tests, and
suspected cases. This is an improvement from a positivity rate of
approximately 50% in mid-July. However, Mexico's Health Ministry,
SALUD, reported on September 4, 2020 excess mortality totals of 122,765
deaths through August 28, 2020 as compared to 2019 totals. This figure
includes confirmed cases of COVID-19 and deaths confirmed from other
causes, but the excess suggests the true number of deaths from COVID-19
in Mexico is much higher than official counts.
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\29\ WHO Coronavirus Disease (COVID-19) Dashboard, WHO, https://COVID19.who.int/table (last visited Oct. 2, 2020).
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While the data on Mexico is more limited, there are signs that the
rate of COVID-19 community transmission in Mexico is slowing as the
overall public health situation improves somewhat. As of September 25,
2020, under SALUD's ``stoplight'' designation system, none of Mexico's
32 states are red, 15 are orange, 16 are yellow and 1, Colima, is
green. According to SALUD, Mexico City has the most lab-confirmed cases
with 121,087 and the most deaths with 11,814 as of September 24, 2020.
Hospital occupancy rates have also improved in recent weeks--the
national hospital occupancy rate is 28 percent--hospital occupancy
rates remain elevated in Mexican border-states such as Nuevo Leon (47
percent). As of September 25, 2020, several Mexican border states
report relatively high numbers of active COVID-19 infections:
Tamaulipas (3,566 active cases), Nuevo Leon (6,028 actives cases) and
Baja California (1,440 active cases).
The COVID-19 pandemic in Mexican states along the U.S.-Mexico
border region presents increased concerns for the United States because
all covered aliens crossing the U.S.-Mexico border necessarily travel
through that region and the level of migration is so high. From March
to August, 2020, DHS has processed 54,503 inadmissible aliens at POEs
along the border, and U.S. Border Patrol has apprehended 345,267 aliens
attempting to unlawfully enter the United States between POEs.\30\ DHS
determined 153,569 were covered aliens subject to the March 20, 2020
Order, of which over 70% were Mexican nationals. With the continued
growth of COVID-19 cases in Central and South America, the overwhelming
majority of covered aliens encountered on the U.S.-Mexico border are
nationals of countries experiencing sustained human to human
transmission of COVID-19.
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\30\ Supra, note 21.
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The continued prevalence of COVID-19 in Mexico continues to present
a serious danger of the introduction of COVID-19 into the United
States. If community transmission in the Mexican border region
accelerates, experience shows then the numbers of COVID-19 cases in
that region are likely to increase, as are the numbers of infected
covered aliens who seek to introduce themselves into the United States.
The introduction of more infected covered aliens would likely have a
negative impact on community transmission in the United States.
iii. United States
While pandemic conditions have improved, community transmission of
COVID-19 is continuing across the United States. The United States has
recorded over 7,200,000 cumulative confirmed cases; and more than
200,000 deaths.\31\ The country is averaging around 36,000 to 40,000
new cases a day.\32\ Nationally, since mid-July, there has been an
overall decreasing trend in the percentage of specimens testing
positive and a decreasing or stable (change of https://COVID.cdc.gov/COVID-data-tracker/#cases_casesinlast7days (last
visited Oct. 6, 2020).
\32\ Id.
\33\ COVID View: A Weekly Summary of U.S. COVID-19 Activity Week
39, Ctrs. for Disease Control & Prevention https://www.cdc.gov/coronavirus/2019-ncov/COVID-data/covidview/index.html (last visited
Oct. 6, 2020).
\34\ CDC COVID Data Tracker: United States Laboratory Testing,
Ctrs. for Disease Control & Prevention https://COVID.cdc.gov/COVID-data-tracker/#testing_totalpercentpositive (last visited Oct. 6,
2020).
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Millions of Americans are subject to local and state public health
restrictions and precautions calculated to slow the spread of, and
protect others from, COVID-19. CDC continues to recommend that all
Americans practice vigorous hand hygiene, engage in social
distancing,\35\ limit non-essential travel,\36\ and wear cloth face
coverings or masks when out in public.\37\ Public health measures
intended to slow the spread of COVID-19 in order to avoid
[[Page 65812]]
overwhelming healthcare systems have largely proven successful.
However, several cities and states, including several located at or
near U.S. borders, continue to experience widespread, sustained
community transmission that has strained their healthcare and public
health systems. Furthermore, continuing to slow the rate of COVID-19
transmission is critical as states and localities ease public health
restrictions on businesses and public activities in an effort to
mitigate the economic and other costs of the COVID-19 pandemic.
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\35\ How to Protect Yourself & Others, Ctrs. for Disease Control
& Prevention https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last visited Oct. 6, 2020).
\36\ Travel During the COVID-19 Pandemic, Ctrs. for Disease
Control & Prevention https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-during-COVID19.html (last visited Oct. 6, 2020).
\37\ COVID-19: Use of Cloth Face Coverings to Help Slow the
Spread of COVID-19, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html (last reviewed Oct. 6, 2020).
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III. Determination and Implementation
Based on the foregoing, I find that COVID-19 is a quarantinable
communicable disease \38\ and that there is a serious danger of the
introduction of COVID-19 into the POEs and Border Patrol stations at or
near 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 and coastal borders with Canada
and Mexico. I also find that the introduction into land and coastal
POEs and Border Patrol stations of covered aliens increases the
seriousness of the danger to the point of requiring a temporary
suspension of the right to introduce covered aliens into the United
States. Therefore, I am suspending the right to introduce and
prohibiting the introduction of covered aliens travelling into the
United States from Mexico and Canada.
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\38\ COVID-19 is a severe acute respiratory syndrome, which is
one of the diseases included in the ``Revised List of Quarantinable
Communicable Diseases.'' Exec. Order 13295 (Apr. 4, 2003), as
amended by Exec. Order 13375 (Apr. 1, 2005) and Exec. Order 13674
(July 31, 2014).
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In making this determination, I have considered facts including the
overall number of cases of COVID-19 reported in Mexico, Canada, and the
countries or places of origin of the covered aliens who migrate to the
United States across the land and coastal borders with Canada and
Mexico, the influx of cases in areas near the U.S.-Mexico border,
epidemiological factors including the viral transmissibility and
asymptomatic transmission of the disease, the morbidity and mortality
associated with the disease for individuals in certain risk categories,
and the negative effects of the disease already experienced by CBP.
Therefore, it is necessary for the United States to continue the
suspension of the right to introduce covered aliens at this time.
The continued suspension of the right to introduce covered aliens
requires the movement of all such aliens to the country from which they
entered the United States, their country of origin, or another
practicable location outside the United States, 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.
I consulted with DHS and other federal departments as needed before
I issued this Order, and requested that DHS aid in the enforcement 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 this Order. 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. Additionally, DHS will continue to use repatriation
flights as necessary to move covered aliens on a space-available basis,
as authorized by law. In my view, DHS's assistance with implementing
the Order is necessary, as 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.\39\
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\39\ 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.
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This Order is not a rule subject to notice and comment under the
Administrative Procedure Act (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 public health
practices--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 . . . 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 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, and continuation of this
Order is no longer necessary to protect public health. Every 30 days,
the CDC shall review the latest information regarding the status of the
COVID-19 pandemic and associated public health risks to ensure that the
Order remains necessary to protect public health.
Upon determining that the further introduction of COVID-19 into the
United States is no longer a serious danger to the public health
necessitating the continuation of this Order, I will publish a notice
in the Federal Register terminating this Order and its Extensions. I
retain the authority to extend, modify, or terminate the Order, or
implementation of this Order, at any time as needed to protect public
health.
Authority
The authority for this Order is Sections 362 and 365 of the Public
Health Service Act (42 U.S.C. 265, 268) and 42 CFR 71.40.
Nina B. Witkofsky,
Acting Chief of Staff, Centers for Disease Control and Prevention.
[FR Doc. 2020-22978 Filed 10-13-20; 4:15 pm]
BILLING CODE 4163-18-P
