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, 17060-17088 [2020-06327]

Agencies

• Centers for Disease Control and Prevention
• DEPARTMENT OF HEALTH AND HUMAN SERVICES

[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 https://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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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/.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \59\ Supra, note 36.
    \60\ Exhibits 2 and 3, attached.
    \61\ Id.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \62\ Supra, note 4.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    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.
BILLING CODE 4163-18-P

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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