Extension of Order Under Sections 362 and 365 of the Public Health Service Act; Order Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 22424-22427 [2020-08605]

Agencies

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

[Federal Register Volume 85, Number 78 (Wednesday, April 22, 2020)]
[Notices]
[Pages 22424-22427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08605]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Disease Control and Prevention


Extension of Order Under Sections 362 and 365 of the Public 
Health Service Act; Order Suspending Introduction of Certain Persons 
From Countries Where a Communicable Disease Exists

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 an extension of an Order issued March 20, 2020, under 
Sections 362 and 365 of the Public Health Service Act, and associated 
implementing regulations, that suspends the introduction of certain 
persons from countries where an outbreak of a communicable disease 
exists. The Order was issued on April 20, 2020 and shall remain in 
effect until 11:59 p.m. EDT on May 20, 2020. This Order may be amended 
or rescinded prior to that time at the discretion of the Director.

DATES: This action took effect April 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 an Order prohibiting 
the introduction of certain persons from countries where an outbreak of 
a communicable disease exists (85 FR 17060; March 26, 2020).

[[Page 22425]]

The Order was scheduled to expire April 20, 2020.\1\
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    \1\ See 1 CFR 18.17. When a date falls on a weekend or holiday, 
the next Federal business day is used.
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    Unfortunately, COVID-19 has continued to spread since the March 20 
Order. Canada and Mexico continue to see large numbers of COVID-19 
infections and deaths. In addition, the United States has seen many 
states enter the acceleration phase of the COVID-19 pandemic, which has 
strained the healthcare system and prompted dramatic public health 
responses at the local, state, and Federal levels. Millions of 
Americans are now complying with local and state stay-at-home orders, 
engaging in social distancing, and taking other precautions calculated 
to slow the spread of, and protect others from, COVID-19. At the 
Federal level, HHS and the Department of Homeland Security (DHS) are 
working with public and private stakeholders to rapidly procure, 
distribute, and increase the supply of scarce medical and healthcare 
resources such as personal protective equipment (PPE), ventilators, and 
therapeutics for the American public. The entire country has mobilized 
to save lives by limiting face-to-face contact and reserving medical 
and healthcare resources for those who need them most. The 
determinations made in support of the March 20 Order remain correct and 
should continue in place until 11:59 p.m. EDT on May 20.
    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.

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):

Extension of Order Suspending Introduction of Certain Persons From 
Countries Where a Communicable Disease Exists

    I am extending the Order Suspending Introduction of Certain Persons 
from Countries Where a Communicable Disease Exists issued on March 20, 
2020 until 11:59 p.m. EDT on May 20 or until I determine that the 
danger of further introduction of COVID-19 into the United Sates has 
ceased to be a serious danger to the public health, whichever is 
sooner. I may further amend or extend the March 20, 2020 Order as 
needed to protect the public health.
    I issued the March 20, 2020 Order pursuant to Sec. Sec.  362 and 
365 of the Public Health Service (PHS) Act, 42 U.S.C. 265, 268, and the 
Act's 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.
    The March 20, 2020 Order suspended introduction of certain 
``covered aliens'' into the United States for a period of 30 days. The 
March 20, 2020 Order defined ``covered aliens'' as follows:

    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 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.

In addition, the March 20, 2020 Order did 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.''

    The March 20, 2020 Order was based on the following determinations:
     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. 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 common 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 to the point of requiring a temporary suspension of the 
introduction of covered aliens into the United States.
    COVID-19 has continued to spread since the March 20, 2020 Order. 
Canada and Mexico continue to see increasing numbers of COVID-19 
infections and deaths. In addition, the United States has seen many 
states experience exponential growth in the number of confirmed COVID-
19 cases, which has strained the healthcare system and prompted 
dramatic public health responses at the local, state, and Federal 
levels. Millions of Americans are now complying with local and state 
stay-at-home orders, engaging in social distancing, and taking other 
precautions calculated to slow the spread of, and protect others from, 
COVID-19. At the Federal level, the U.S. Departments of Health and 
Human Services (HHS) and Homeland Security (DHS) are working with 
public and private stakeholders to rapidly procure, distribute, and 
increase the supply of scarce medical and healthcare resources such as 
personal protective equipment (PPE), ventilators, and therapeutics for 
the American public. The entire country has mobilized to save lives by 
limiting face-to-face contact and reserving medical and healthcare 
resources for those who need them most. At a time when these domestic 
efforts are ongoing and effective, it would be counterproductive and 
dangerous to undermine those efforts by permitting the introduction of 
persons from outside the United States who pose a risk of transmission 
of COVID-19 within DHS facilities or the U.S. interior.
    Further, the determinations made in support of the March 20, 2020 
Order remain correct. If anything, they have become more compelling. I 
therefore conclude that the March 20, 2020 Order should remain in 
effect until 11:59 p.m. EDT on May 20.

COVID-19 Is Continuing To Spread in Canada, Mexico, and the United 
States

    Since the March 20, 2020 Order, the number of COVID-19 cases 
globally,

[[Page 22426]]

including in Canada, Mexico, and the United States, has continued to 
increase.

Canada

    As of April 13, 2020, Canada has reported 24,804 confirmed cases of 
COVID-19, and a total of 734 deaths. Canada has tested 422,200 people 
for COVID-19.\2\ The Public Health Agency of Canada estimates that 72% 
of infections are the result of community transmission. Canadian 
modeling indicates that, with the use of strong epidemic controls 
resulting in a 2.5% infection rate, Canada could see 940,000 people 
with infections, 73,000 hospitalizations, and 23,000 people requiring 
intensive care over the course of the COVID-19 pandemic.\3\
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    \2\ Government of Canada, Coronavirus disease (COVID-19): 
Outbreak Update (Apr. 13, 2020), https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection.html?topic=tilelink#a2.
    \3\ Public Health Agency of Canada, COVID-19 in Canada: Using 
Data and Modeling to Inform Public Health Action (Apr. 9, 2020), 
available at https://www.canada.ca/content/dam/phac-aspc/documents/services/diseases/2019-novel-coronavirus-infection/using-data-modelling-inform-eng.pdf.
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    Canada has implemented and maintained robust public health measures 
to slow the spread of COVID-19, including closures of public schools 
and cancelation of public events.\4\ Non-essential businesses have been 
closed across the country.
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    \4\ See generally Kristin Rushowy, The Star, Ontario Schools 
Will Remain Closed Until at Least May 4. But Kids Can Expect Marks 
(Mar. 31, 2020), https://www.thestar.com/politics/provincial/2020/03/31/ontario-schools-wont-open-until-at-least-may.html; Ryan Rocca, 
Global News, Coronavirus: City of Toronto Cancels Events Through 
June 30, including Pride Parade (updated Apr. 1, 2020), https://globalnews.ca/news/6758350/coronavirus-toronto-cancels-events-pride-parade/.
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Mexico

    As of April 12, 2020, Mexico has reported 3,844 confirmed cases of 
COVID-19 and 233 deaths.\5\ Nevertheless, based on public health 
surveillance, Mexico estimates that its current case count is 26,519. 
Mexico's modeling, based on World Health Organization (WHO) reporting 
from China, assumes a 0.2% infection rate with 250,656 infected people 
during the acceleration phase of the pandemic.\6\ Of those people, 70% 
(175,459) are anticipated to seek medical care.\7\ Among people seeking 
medical care, it is projected that 80% (140,367) will be ambulatory 
patients, 14% (25,564) will need to be hospitalized without intensive 
care, and 6% (10,528) will require intensive care.\8\
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    \5\ World Health Organization, Coronavirus Disease 2019 (COVID-
19) Situation Report--83 (Apr. 12, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200412-sitrep-83-covid-19.pdf?sfvrsn= 697ce98d_4.
    \6\ Secretaria De Salud, COVID-19: Comunicado Tecnico Diario 
(Mar. 17, 2020), available at https://www.gob.mx/cms/uploads/attachment/file/541879/COVID-19_-_Presentacion_Comunicado_Tecnico_Diario_2020.03.17.pdf.pdf.
    \7\ Id.
    \8\ Id.
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    On March 30, 2020, Mexico's General Health Council declared a 
``State of Health Emergency'' and suspended all non-essential 
activities in the public and private sectors until April 30, 2020.\9\ 
The order granted full authority to the Secretariat of Health to take 
action to address the pandemic across Mexico. The central guidance of 
the Mexican health authorities is to maximize social distancing and 
that people should only leave their homes for essential activities, 
such as to procure food or medical care.\10\ State and local 
authorities in several Mexican states also are enforcing non-essential 
business closures and self-quarantine measures.
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    \9\ U.S. Department of State, U.S. Embassy and Consulates in 
Mexico, Health Alert--Mexico COVID-19 Update (Apr. 10, 2020), 
https://mx.usembassy.gov/health-alert-mexico-covid-19-update-04-10-2020/.
    \10\ Id.
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United States

    As of April 13, 2020, the United States has reported 554,849 
confirmed cases of COVID-19 across the United States and 21,942 
deaths.\11\ Community transmission of COVID-19 is occurring in many 
locations across the United States. Several cities and states have 
experienced widespread, sustained community transmission to the extent 
that their healthcare and public health systems are at risk of being 
overwhelmed. This includes parts of states and territories at or near 
borders of the United States which are reporting large increases in new 
COVID-19 cases since the March 20, 2020 Order.\12\
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    \11\ CDC, Cases in U.S. (updated Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.
    \12\ The New York Times, Coronavirus in the U.S.: Latest Map and 
Case Count (Apr. 13, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html#states; see also CDC, Coronavirus 
Disease 2019 (COVID-19): Cases in U.S.: States Reporting Cases of 
COVID-19 to CDC (Apr. 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html#cumulative.
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    In addition to practicing rigorous hygiene and social distancing 
and limiting non-essential travel,\13\ CDC's guidance to the general 
public has expanded to include the recommendation that individuals wear 
face coverings when out in public.\14\ CDC expects widespread 
transmission of COVID-19 in the United States will occur and, in the 
coming months, most of the U.S. will be exposed to COVID-19.\15\ 
Nevertheless, not all areas of the United States are currently 
experiencing high rates of infection or numbers of confirmed cases. 
Generally speaking, COVID-19 is currently concentrated along the East, 
West, and Gulf Coasts and in the Great Lakes region; there are 
significantly fewer cases in the interior of the United States.\16\ 
Limiting the spread of COVID-19 in these less affected areas is a 
critical component of the overall U.S. strategy to ``flatten the 
curve,'' which requires limiting the number of foci, or infected 
individuals, who may enter these areas.
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    \13\ CDC, COVID-19: How to Protect Yourself and Others (last 
reviewed Apr. 8, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
    \14\ CDC, COVID-19: How to Wear a Cloth Face Covering (last 
reviewed Apr. 9, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html.
    \15\ CDC, Testing for COVID-19 (Mar. 21, 2020), https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/testing.html.
    \16\ See Johns Hopkins University, COVID-19 United States Cases 
by County, https://coronavirus.jhu.edu/us-map.
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Joint Efforts

    On March 20, 2020, the United States and Canada jointly decided to 
restrict all non-essential travel across the U.S.-Canadian border for 
30 days, with limited exceptions for U.S. citizens and others entering 
Canada for essential business, provided these individuals have not been 
outside Canada or the United States in the 14 days prior to requesting 
entry into Canada. Foreign nationals, excluding those arriving from the 
U.S., will not be allowed into Canada, subject to certain 
exceptions.\17\ The Canadian government is requiring individuals 
returning home to Canada to self-isolate for 14 days upon their 
return.\18\ Individuals exhibiting symptoms of COVID-19 are not 
permitted to enter Canada, except for Canadian citizens or permanent 
residents.\19\
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    \17\ See Notification of Temporary Travel Restrictions 
Applicable to Land Ports of Entry and Ferries Service Between the 
United States and Canada, 85 FR 16548 (Mar. 24, 2020).
    \18\ Government of Canada, Coronavirus disease (COVID-19): 
Canada's Response, https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/canadas-reponse.html?topic=tilelink.
    \19\ Id.
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    Similarly, on March 20, 2020, the United States and Mexico 
announced a joint initiative temporarily restricting all non-essential 
travel across their border in an effort to combat the spread of COVID-
19.\20\
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    \20\ U.S. Department of Homeland Security, Joint Statement on 
U.S.-Mexico Joint Initiative to Combat the COVID-19 Pandemic (Mar. 
20, 2020), available at https://www.dhs.gov/news/2020/03/20/joint-statement-us-mexico-joint-initiative-combat-covid-19-pandemic.

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[[Page 22427]]

Availability of Rapid COVID-19 Testing

    Since the March 20, 2020 Order, rapid testing for COVID-19 has been 
developed that can provide results in approximately 15 minutes and 
manufacturers are currently ramping up production and distribution of 
rapid COVID-19 testing.\21\ Although rapid COVID-19 testing could 
ameliorate some of the public health concerns associated with 
congregate detention in DHS border facilities, rapid COVID-19 testing 
is not yet widely available, and demand outstrips supply. Moreover, 
once it is available, rapid COVID-19 testing should be prioritized to 
certain key locations, such as hospitals treating high numbers of 
COVID-19 patients, where the ability to quickly determine whether 
doctors and nurses have been infected with COVID-19 could increase the 
availability of care providers by eliminating the need for these 
individuals to self-isolate while awaiting test results.
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    \21\ For instance, on March 27, 2020, Abbott received emergency 
use authorization from the U.S. Food and Drug Administration 
(``FDA'') for the fastest available point-of-care test for COVID-19. 
Abbott, ``Detect COVID-19 in as Little as 5 Minutes'' (Mar. 27, 
2020), https://www.abbott.com/corpnewsroom/product-and-innovation/detect-covid-19-in-as-little-as-5-minutes.html; see generally U.S. 
Food and Drug Administration, Emergency Use Authorizations, https://www.fda.gov/medical-devices/emergency-situations-medical-devices/emergency-use-authorizations#covid19ivd. Rapid COVID-19 testing will 
significantly reduce the time needed to confirm a suspected 
diagnosis of COVID-19, which currently may take as long as three to 
four days. See CDC, Order Suspending Introduction of Certain Persons 
from Countries where a Communicable Disease Exists (Mar. 20, 2020), 
available at https://www.cdc.gov/quarantine/pdf/CDC-Order-Prohibiting-Introduction-of-Persons_Final_3-20-20_3-p.pdf; see also 
CDC, Interim Guidelines for Collecting, Handling, and Testing 
Clinical Specimens from Persons for Coronavirus Disease 2019 (COVID-
19) (updated Apr. 8, 2020), https://www.cdc.gov/coronavirus/2019-nCoV/lab/guidelines-clinical-specimens.html. When a case of COVID-19 
is suspected, the sooner that confirmatory test results are 
available, the more quickly treatment and isolation and quarantine 
measures can be implemented, lowering the risk of infecting others. 
See CDC, Evaluating and Testing Persons for Coronavirus Disease 2019 
(COVID-19) (updated Mar. 24, 2020), https://www.cdc.gov/coronavirus/2019-nCoV/hcp/clinical-criteria.html.
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Determination and Implementation

    Based on the foregoing, I find that the global presence of COVID-
19, including in Canada, Mexico, still presents a danger of further 
introduction of COVID-19 into the United States. This is true 
notwithstanding the community transmission of COVID-19 in many 
locations across the United States. There are many locations in the 
United States near our borders with Canada and Mexico that have not yet 
experienced widespread community transmission. The on-going COVID-19 
pandemic, including in Canada and Mexico, remains a serious danger to 
such locations.
    In the March 20, 2020 Order, I found the risks troubling partly 
because outbreaks of COVID-19 in POEs or Border Patrol stations would 
lead U.S. Customs and Border Protection to transfer persons with acute 
presentations of illness to local or regional healthcare providers for 
treatment, 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. Millions of Americans are complying with local and 
state stay-at-home orders, engaging in social distancing, and taking 
other precautions calculated to slow the spread, protect others, and 
relieve the strain on the healthcare system. Their efforts would be 
significantly undermined if outbreaks of COVID-19 in land POEs or 
Border Patrol stations crippled the DHS workforce and local or regional 
healthcare systems.
    I consulted with DHS before issuing this Order and requested that 
DHS continue to implement the March 20, 2020 Order because CDC does not 
have the capability, resources, or personnel needed to alternatively 
issue quarantine or isolation orders.\22\
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    \22\ As previously discussed in the March 20, 2020 Order, 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. See 42 U.S.C. 268(b) (requiring 
customs officers to aid in the enforcement of quarantine 
regulations). CDC lacks the resources, staffing, 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 purposes of quarantine or isolation.
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    The March 20, 2020 Order shall remain in effect until 11:59 p.m. 
EDT on May 20, or until I determine that the danger of further 
introduction of COVID-19 into the United Sates has ceased to be a 
serious danger to the public health, whichever is sooner. I may further 
amend or extend the March 20, 2020 Order as needed to protect the 
public health.
    This Order is not a rule subject to notice and comment under the 
Administrative Procedure Act (APA). In the event this order qualifies 
as a rule subject to notice and comment, 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.\23\ 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 ongoing 
discussions with Canada and Mexico on how to best control COVID-19 
transmission over our shared borders, 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.
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    \23\ See 5 U.S.C. 553(b)(B) and (d)(3).
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* * * * *
    The March 20, 2020 Order shall remain in effect until 11:59 p.m. 
EDT on May 20, 2020.

Authority

    The authority for these orders is Sections 362 and 365 of the 
Public Health Service Act (42 U.S.C. 265, 268) and 42 CFR 71.40.

    Dated: April 19, 2020.
Robert K. McGowan,
Chief of Staff, Centers for Disease Control and Prevention.
[FR Doc. 2020-08605 Filed 4-20-20; 9:00 am]
 BILLING CODE 4163-18-P