Amendment and 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, 31503-31509 [2020-11179]

Agencies

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

[Federal Register Volume 85, Number 101 (Tuesday, May 26, 2020)]
[Notices]
[Pages 31503-31509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11179]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Disease Control and Prevention


Amendment and 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.

-----------------------------------------------------------------------

SUMMARY: The Centers for Disease Control and Prevention (CDC), a 
component of the Department of Health and Human Services (HHS), 
announces the amendment of an Order issued on March 20, 2020 and 
extended on April 20, 2020 under Sections 362 and 365 of the Public 
Health Service Act, and associated implementing regulations, that 
temporarily suspends the introduction of certain aliens based on the 
Director's determination that introduction of aliens, regardless of 
their country of origin, migrating through Canada and Mexico into the 
United States creates a serious danger of the introduction of COVID-19 
into the United States, and the danger is so increased by the 
introduction of such aliens that a temporary suspension is necessary to 
protect the public health. This amendment and extension was issued on 
May 20, 2020 and shall remain in effect until the CDC Director 
determines that the danger of further introduction of COVID-19 into the 
United States from covered aliens has ceased to be a serious danger to 
the public health, and the Order is no longer necessary to protect the 
public health. CDC shall review the latest information regarding the 
status of the COVID-19 pandemic and associated public health risks 
every thirty days to ensure that the Order remains necessary to protect 
the public health.

DATES: This action is effective 12:00 a.m. EDT May 21, 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:

March 20, 2020 Order

    On March 20, 2020, the Director of the Centers for Disease Control 
and Prevention issued an Order temporarily suspending the introduction 
of certain aliens from Canada and Mexico, including certain aliens who 
migrate to the United States across the land borders with Canada and 
Mexico, because the introduction of such aliens creates a serious 
danger of the introduction of such disease into the United States, and 
the danger is so increased by the introduction of such aliens that a 
temporary suspension is necessary to protect the public health (85 FR 
17060). The Order suspended the introduction of certain persons into 
the United States for a period of 30 days.

April 20, 2020 Order

    On April 20, 2020, the Director of CDC extended the March 20, 2020 
Order until 11:59 p.m. EDT on May 20, 2020 (85 FR 22424). The April 20, 
2020 extension found that the determinations of the March 20, 2020 
Order remain correct, and further determined that the

[[Page 31504]]

suspended introduction of covered aliens should continue for another 30 
days because the increasing numbers of COVID-19 infections in Canada, 
Mexico, and the United States, as well as the highly dynamic domestic 
healthcare landscape still presented a serious danger of further 
introduction of COVID-19.

May 20, 2020 Order

    Recent data from the Department of Homeland Security (DHS) 
indicates the Order has mitigated the specific public health risks 
identified in the March 20, 2020 Order by significantly reducing the 
population of covered aliens held in POEs and Border Patrol stations. 
However, since the April 20, 2020 extension, Canada and Mexico continue 
to see increasing numbers of COVID-19 infections and deaths. 
Epidemiologically speaking, the United States remains in the 
acceleration phase of the pandemic. Accordingly, there remains a 
serious risk to the public health that COVID-19 will continue to spread 
to unaffected communities within the United States, or further burden 
already affected areas.
    Thus, the Director of CDC is amending the Order Suspending 
Introduction of Certain Persons from Countries Where a Communicable 
Disease Exists, issued on March 20, 2020 and extended on April 20, 
2020, to clarify that it applies to land and coastal Ports of Entry and 
Border Patrol stations that would otherwise hold covered aliens in a 
congregate setting. The Director is also extending the duration of the 
Order until he determines that the risk of further introduction of 
COVID-19 into the United States from covered aliens has ceased to be a 
serious danger to the public health, and the Order is no longer 
necessary to protect the public health. CDC shall review the latest 
information regarding the status of the COVID-19 pandemic and 
associated public health risks every thirty days to ensure that the 
Order remains necessary to protect the public health.
    A copy of the Order is provided below and a copy of the signed 
Order can be found at https://www.cdc.gov/quarantine/order-suspending-introduction-certain-persons.html.

U.S. Department of Health and Human Services Centers for Disease 
Control and Prevention (CDC)

Order Under Sections 362 & 365 of the Public Health Service Act (42 
U.S.C. 265, 268):

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

I. Introduction

    I am amending the Order Suspending Introduction of Certain Persons 
from Countries Where a Communicable Disease Exists, issued on March 20, 
2020 (hereinafter, March 20, 2020 Order or Order) and extended on April 
20, 2020 (hereinafter, April 20, 2020 Extension or Extension), to 
clarify that it applies to all land and coastal Ports of Entry (POEs) 
and Border Patrol stations \1\ at or near the United States' border 
with Canada or Mexico that would otherwise hold covered aliens in a 
congregate setting. I am extending the duration of the Order until I 
determine that the danger of further introduction of COVID-19 into the 
United States has ceased to be a serious danger to the public health, 
and continuation of the Order is no longer necessary to protect the 
public health. Every 30 days, the Centers for Disease Control and 
Prevention (CDC) shall review the latest information regarding the 
status of the COVID-19 pandemic and associated public health risks to 
ensure that the Order remains necessary to protect the public health. 
Upon determining that the further introduction of COVID-19 into the 
United States is no longer a serious danger to the public health 
necessitating the continuation of this Order, I will publish a notice 
in the Federal Register terminating this Order and its Extensions.
---------------------------------------------------------------------------

    \1\ As explained below, air POEs are excluded from the Amended 
Order and Extension because they do not present the same public 
health risk as land and coastal POEs.
---------------------------------------------------------------------------

II. History of Order

A. March 20, 2020 Order

    I issued the March 20, 2020 Order pursuant to sections 362 and 365 
of the Public Health Service (PHS) Act, 42 U.S.C. 265, 268, and the 
Act's implementing regulations, which authorize the Director of 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 described ``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.

    The March 20, 2020 Order also 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

[[Page 31505]]

the point of requiring a temporary suspension of the introduction of 
covered aliens into the United States.

B. April 20, 2020 Extension

    On April 20, 2020, I extended the March 20, 2020 Order until 11:59 
p.m. EDT on May 20, 2020. The April 20, 2020 Extension found that the 
determinations of the March 20, 2020 Order remain correct, and further 
determined that the suspension of introduction of covered aliens should 
continue for another 30 days based on the increasing numbers of COVID-
19 infections in Canada, Mexico, and the United States, and the highly 
dynamic domestic health care landscape.
    As detailed below, the Order has proven effective in reducing the 
risk of COVID-19 within POEs and Border Patrol stations, and the latest 
information on the status of the pandemic in Canada, Mexico, and the 
United States justifies issuing this Amendment and Extension until I 
determine that the serious danger of further introduction of COVID-19 
into the United States has ceased to be a danger to the public health.

III. The Order Has Reduced the Risk of COVID-19 Transmission in POEs 
and Border Patrol Stations

    Recent DHS data indicates the March 20, 2020 Order and April 20, 
2020 Extension have significantly mitigated the specific public health 
risk identified in the initial Order by significantly reducing the 
population of covered aliens held in congregate settings in POEs and 
Border Patrol stations, thereby reducing the risk of COVID-19 infection 
among DHS personnel and others within these facilities.
    DHS has provided CDC with statistical information on the impact of 
the Order and Extension, which supports my decision to further extend 
the suspension. For example, following issuance of the March 20, 2020 
Order, DHS data on operational encounters with covered aliens 
demonstrate that the population of covered aliens held in POEs and 
Border Patrol stations was reduced by 88 percent. Specifically, in the 
46-day period preceding the March 20, 2020 Order (i.e., February 3, 
2020 to March 20, 2020), there was a daily average of 3,249 covered 
aliens in custody at POEs and Border Patrol stations. In the 47-day 
period following the March 20, 2020 Order (i.e., March 21, 2020 to May 
6, 2020), there was a daily average of 395 covered aliens in custody, 
with approximately 100 aliens in CBP facilities at any given time. By 
significantly reducing the number of covered aliens held in POEs and 
Border Patrol stations, the Order and Extension have reduced the 
density of covered aliens held in congregate custody within these 
facilities, which reduces the risk of exposure to COVID-19 for DHS 
personnel and others in POEs and Border Patrol stations.

IV. Conditions in Canada, Mexico, and the United States Warrant 
Continued Implementation of the Order

    Since the April 20, 2020 Extension, COVID-19 has continued to 
spread. Canada and Mexico continue to see increasing numbers of COVID-
19 infections and deaths. In the United States, many states continue to 
experience growth in the number of confirmed COVID-19 cases, as more 
states enter the acceleration phase of the pandemic. Although certain 
early hotspots are beginning to see improvement, and certain areas of 
the country are beginning a phased reopening of their communities, 
millions of Americans continue to comply with stay-at-home orders and 
practice social distancing, most schools and businesses remain closed, 
and health care providers across the country continue to strive to meet 
the demand for COVID-19-related care. Epidemiologically speaking, the 
United States as a whole remains in the acceleration phase of the 
pandemic.\2\ Accordingly, there remains a serious risk to the public 
health that COVID-19 will continue to spread to unaffected communities 
within the United States, or further burden already affected areas. At 
this critical juncture, it would be counterproductive to undermine 
ongoing public health efforts by relaxing restrictions on the 
introduction of covered aliens who pose a risk of further introducing 
COVID-19 into the United States.
---------------------------------------------------------------------------

    \2\ CDC, Situation Summary (updated Apr. 19, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html; see 
also Dr. Anne Schuchat, MMWR and Morbidity and Mortality Weekly 
Report, U.S. Dep't. of Health and Human Services, Public Health 
Response to the Initiation and Spread of Pandemic COVID-19 in the 
United States, February 24-April 21, 2020 (May 8, 2020), available 
at https://www.cdc.gov/mmwr/volumes/69/wr/mm6918e2.htm#suggestedcitation.
---------------------------------------------------------------------------

A. Canada

    As of May 9, 2020, Canada has reported 66,780 confirmed cases of 
COVID-19, and a total of 4,628 deaths. Canada has tested 1,067,595 
people for COVID-19.\3\ The Public Health Agency of Canada believes 
that the COVID-19 pandemic may have reached its peak, but expects that 
the number of confirmed COVID-19 cases will continue to increase.\4\ 
The Canadian government estimates that 81 percent of COVID-19 cases are 
the result of community transmission.\5\ Canadian modeling indicates 
that, with the use of strong epidemic controls resulting in a 2.5 
percent 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.\6\ Canada 
continues to enforce robust public health measures to slow the spread 
of COVID-19; non-essential businesses and public schools remain largely 
closed, and public events remain cancelled.\7\
---------------------------------------------------------------------------

    \3\ Government of Canada, Coronavirus disease (COVID-19): 
Outbreak Update (May 9, 2020), https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection.html?topic=tilelink#a2.
    \4\ Government of Canada, Epidemiological Summary of COVID-19 
Cases in Canada (May 9, 2020), https://health-infobase.canada.ca/covid-19/epidemiological-summary-covid-19-cases.html.
    \5\ Id.
    \6\ Public Health Agency of Canada, COVID-19 in Canada: Using 
Data and Modeling to Inform Public Health Action (last updated May 
3, 2020), https://www.canada.ca/en/public-health/services/publications/diseases-conditions/covid-19-using-data-modelling-inform-public-health-action.html.
    \7\ Schools in Quebec are scheduled to re-open May 11 with 
restrictions. See Solarina Ho, CTV News (May 4, 2020) https://www.ctvnews.ca/health/coronavirus/when-will-school-resume-what-we-know-province-by-province-1.4923667; see also generally Marc 
Montgomery, Radio Canada International (May 5, 2020) https://www.rcinet.ca/en/2020/05/05/covid-19-the-2020-summer-of-fun-events-that-werent/.
---------------------------------------------------------------------------

B. Mexico

    As of May 9, 2020, Mexico has reported 29,616 confirmed cases of 
COVID-19 and 2,961 deaths.\8\ The Mexican Health Ministry believes that 
there are approximately 8 additional cases for each confirmed case of 
COVID-19.\9\ On April 21, 2020, government officials announced that 
Mexico has entered Phase III of the COVID-19 pandemic, the Mexican 
government's highest level of public health emergency.\10\ As the 
pandemic continues, there are media reports of hospitals in Mexico City 
turning away

[[Page 31506]]

potential COVID-19 cases and fears that Mexico lacks sufficient 
ventilators.\11\ Mexico's initial modeling, based on Chinese data 
reported by the World Health Organization (WHO), assumed a 0.2 percent 
infection rate with 250,656 people infected during the acceleration 
phase of the pandemic.\12\ Of those people, 70 percent (175,459) are 
anticipated to seek medical care.\13\ Among people seeking medical 
care, it is projected that 80 percent (140,367) will be ambulatory 
patients, 14 percent (25,564) will need to be hospitalized without 
intensive care, and 6 percent (10,528) will require intensive care.\14\ 
Non-governmental models and estimates indicate that Mexico may have 
between 620,000 and 730,000 symptomatic COVID-19 cases.\15\
---------------------------------------------------------------------------

    \8\ World Health Organization, Coronavirus Disease 2019 (COVID-
19) Situation Report--110 (May 9, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200509covid-19-sitrep-110.pdf?sfvrsn=3b92992c_4.
    \9\ Mexico News Daily, New Model Show Highest Number of Virus 
Cases Will Come Sooner Than Expected (Apr. 24, 2020), https://mexiconewsdaily.com/news/coronavirus/new-model-shows-virus-cases-will-come-sooner-than-expected/.
    \10\ James Pasley, MSN News Insider, Mexico has Moved to ``Phase 
3''--its Most Serious Level of Coronavirus Alert--and Faces a 
Looming Outbreak. Here's how it got to this Point (Apr. 23, 2020), 
https://www.msn.com/en-us/news/other/mexico-has-moved-to-phase-3-e2-80-94-its-most-serious-level-of-coronavirus-alert-e2-80-94-and-faces-a-looming-outbreak-heres-how-it-got-to-this-point/ss-BB135RGq/.
    \11\ Andrea Navarro, Bloomberg, Mexico City Top Hospitals Reach 
Capacity, Reject Virus Patients (Apr. 28, 2020), https://www.bloomberg.com/news/articles/2020-04-28/mexico-city-top-hospitals-reach-capacity-reject-virus-patients.
    \12\ 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.
    \13\ Id.
    \14\ Id.
    \15\ See Jorge Galindo, Javier LaFuente, El Pa[iacute]s, The 
Magnitude of the Epidemic in Mexico (May 8, 2020), https://elpais.com/sociedad/2020-05-08/la-magnitud-de-la-epidemia-en-mexico.html; Juan Montes, The Wall Street Journal, Death 
Certificates Point to Much Higher Coronavirus Toll in Mexico (May 8, 
2020), https://www.wsj.com/articles/death-certificates-point-to-much-higher-coronavirus-toll-in-mexico-11588957041; Azam Ahmed, 
Hidden Toll: Mexico Ignores Wave of Coronavirus Deaths in Capital 
(May 8, 2020), https://www.nytimes.com/2020/05/08/world/americas/mexico-coronavirus-count.html.
---------------------------------------------------------------------------

C. United States

    As of May 9, 2020, the United States has reported 1,274,036 
confirmed cases of COVID-19 and 77,034 deaths.\16\ Community 
transmission of COVID-19 is continuing in many locations across the 
United States. Public health measures to slow the spread of COVID-19 so 
as to avoid overwhelming health care systems have, to date, largely 
proven successful.\17\ However, several cities and states, including 
several located at or near U.S. borders, continue to experience 
widespread, sustained community transmission that has put their 
healthcare and public health systems remain at risk of being 
overwhelmed.\18\
---------------------------------------------------------------------------

    \16\ CDC, Cases in U.S. (updated May 9, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.
    \17\ Judy Woodruff, Interview with Vice President of the United 
States Michael Pence, PBS News Hour (Apr. 17, 2020), https://www.pbs.org/newshour/show/our-health-care-system-has-not-been-overwhelmed-by-covid-19-says-pence.
    \18\ See Johns Hopkins University, COVID--19 United States Cases 
by County, https://coronavirus.jhu.edu/us-map; see also Letter from 
Chris D. Van Gorder, President & CEO, Scripps Health, & Daniel L. 
Gross, Executive Consultant, Sharp HealthCare COVID-19 Strategic 
Response, to Hon. Alex M. Azar, Secretary of the U.S. Dep't. of 
Health & Human Services, and Hon. Chad F. Wolf, Acting Secretary of 
the U.S. Dep't. of Homeland Security (Apr. 28, 2020), available at 
https://www.voiceofsandiego.org/wp-content/uploads/2020/04/Border-Concerns-Letter_Scripps-Health_Sharp-HealthCare-4.28.20.pdf; see 
also Letter from Hon. Kristin Gaspar, Supervisor, Third District, 
San Diego County Board of Supervisors, to Hon. Michael Pence, Vice 
President of the United States (Apr. 19, 2020), available at https://www.krqe.com/news/border-report/san-diego-county-official-asks-white-house-to-help-mexico-control-covid-19/.
---------------------------------------------------------------------------

    CDC continues to recommend that all Americans practice vigorous 
hand hygiene, engage in social distancing, limit non-essential 
travel,\19\ and wear cloth face coverings when out in public.\20\ 
Nevertheless, not all areas of the United States are currently 
experiencing high rates of infection or numbers of confirmed cases.\21\ 
Limiting the spread of COVID-19 to un- or less-affected areas, and 
slowing the spread of COVID-19 in highly impacted areas, involves 
limiting the number of foci, or infected individuals, who may enter 
these areas. Such efforts are critical as individual states begin to 
ease public health restrictions on businesses and public activities in 
an effort to mitigate the economic and other costs of the COVID-19 
pandemic.\22\
---------------------------------------------------------------------------

    \19\ CDC, COVID-19: How to Protect Yourself & Others (last 
reviewed May 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
    \20\ CDC, COVID-19: Use of Cloth Face Coverings to Help Slow the 
Spread of COVID-19 (last reviewed May 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html.
    \21\ See Johns Hopkins University, COVID-19 United States Cases 
by County, https://coronavirus.jhu.edu/us-map.
    \22\ Executive Office of President and CDC, Guidelines for 
Opening Up America Again (Apr. 16, 2020), https://www.whitehouse.gov/openingamerica/.
---------------------------------------------------------------------------

V. The Order Is Amended To Apply to Land and Coastal POEs and Border 
Patrol Stations At or Near the Border With Canada or Mexico That Would 
Otherwise Hold Covered Aliens in a Congregate Setting

    As noted above, the March 20, 2020 Order and April 20, 2020 
Extension defined ``covered alien'' in terms of the public health risk 
associated with permitting individuals who have traveled from Canada or 
Mexico to be introduced into a congregate holding area ``in a land Port 
of Entry (POE) or Border Patrol station at or near the United States 
borders with Canada and Mexico.'' Due to the highly contagious nature 
of the virus that causes COVID-19 and the mode of transmission, it is 
determined that the continued introduction of potentially infected 
individuals into these facilities poses a public health risk given the 
role of these facilities and their personnel not only in carrying out 
immigration functions, but also in ensuring safe border crossings for 
essential goods and persons, and in law enforcement activities such as 
preventing terrorism and drug trafficking. Because the limited medical 
capacity in POEs and Border Patrol stations presents a significant 
obstacle to safely managing the risk of COVID-19 among covered aliens 
held in these facilities, the public health risk is best addressed by 
suspending the introduction of covered aliens into land and coastal 
POEs and Border Patrol stations.\23\
---------------------------------------------------------------------------

    \23\ The various screening and documentation requirements to 
board an aircraft justify the exclusion of air POEs from the scope 
of this Order because they do not pose the same public health risk 
as land and coastal POEs. In addition, DHS has informed CDC that air 
POEs do not tend to hold large numbers of persons for the more 
extended processing that occurs at land and coastal POEs.
---------------------------------------------------------------------------

    After consulting with DHS regarding its various operations and 
ability to rapidly stand-up the containment measures and medical 
capacity needed to deal with the COVID-19 pandemic, CDC determined that 
protecting the public health of the United States necessitated 
temporarily suspending the introduction of covered aliens into the 
congregate holding areas of POEs and Border Patrol stations at or near 
the United States' border with Canada and Mexico. CDC understands that, 
at least in theory, it is possible to expand and retrofit POEs and 
Border Patrol stations with the structural and engineering controls 
necessary to contain COVID-19, and that DHS personnel could be equipped 
with the necessary PPE and trained in clinically-informed practices to 
more safely interact with covered aliens. However, CDC believes such an 
endeavor would be ill-advised in that it would consume a significant 
amount of scarce medical resources that could otherwise be used to meet 
the needs of the domestic population. Nor could such interventions--
particularly those involving structural and engineering additions or 
changes to hundreds of DHS facilities--be implemented quickly enough to 
mitigate the current risk of allowing covered aliens to be introduced 
into POEs and Border Patrol stations. As noted above, the Order has 
effectively reduced the population of covered aliens in POEs and Border 
Patrol stations at or near the border, thereby significantly reducing 
the risk COVID-19 spreading within these facilities.\24\
---------------------------------------------------------------------------

    \24\ See supra Section III.

---------------------------------------------------------------------------

[[Page 31507]]

    The intent of the March 20, 2020 Order and April 20, 2020 Extension 
was to suspend the introduction of individuals who have traveled from 
Canada or Mexico who would otherwise likely have been held in the 
congregate holding areas of POEs or Border Patrol stations at or near 
the border with Canada or Mexico, where they could transmit COVID-19 to 
the DHS personnel and other individuals in those facilities. The public 
health risk addressed by the Order and Extension was the risk of 
transmission in the congregate holding areas of POEs and Border Patrol 
stations created when individuals who have traveled from Canada or 
Mexico are held for significant periods of time in these facilities 
because they lack valid documentation for entry into the United States. 
This public health analysis was based, in part, on the operational 
issues identified by DHS, and on the observations of the United States 
Public Health Service Scientist Officer who visited the El Paso del 
Norte POE on March 12-13, 2020. For the purposes of the public health 
analysis and risk determinations, it is irrelevant whether a particular 
POE or Border Patrol station is designated by DHS as a ``land'' or 
``coastal'' facility.\25\ The relevant factor is whether the facility 
receives individuals who have traveled from Canada or Mexico and are 
likely to be held in a congregate setting within a POE or Border Patrol 
station at or near the border.
---------------------------------------------------------------------------

    \25\ DHS has advised CDC that ``coastal borders'' refers to any 
U.S. border that is adjacent to a waterway, rather than land. DHS 
has further advised CDC that ``waterway'' refers to any large body 
of water (e.g., Pacific Ocean, Atlantic Ocean, and Gulf of Mexico). 
For the purpose of this Order, ``coastal'' applies to any waterway 
from which persons traveling through Canada and Mexico may enter the 
United States (e.g. Pacific, Gulf of Mexico, Lake Michigan, Rio 
Grande).
---------------------------------------------------------------------------

    DHS has informed CDC that many POEs and Border Patrol stations 
service both land and coastal borders, such that covered aliens who are 
apprehended while attempting to enter the United States by a coastal 
border are held in the same facilities that temporarily hold covered 
aliens apprehended while crossing into the United States over the land 
borders with Canada and Mexico.\26\ These facilities are substantially 
similar in all respects relevant to the public health analysis. DHS has 
informed CDC that, like their land-based counterparts, coastal POEs and 
Border Patrol stations generally have one or more congregate areas 
where covered aliens are held for processing, and are not structured or 
equipped to manage covered aliens exposed to or infected with COVID-19, 
nor to protect DHS personnel and other individuals within those 
facilities, including other aliens, from exposure to COVID-19. 
Similarly, covered aliens at coastal POEs and Border Patrol stations 
spend periods of time (i.e., hours or days) in the congregate holding 
areas of these facilities while they are processed for immigration 
purposes that are material from a public health perspective. All POEs 
and Border Patrol stations lack medical resources sufficient to provide 
the appropriate level of care required by those infected with COVID-19 
and would be forced to rely on local health systems, many of which are 
straining to meet the medical needs of the domestic population.\27\
---------------------------------------------------------------------------

    \26\ Indeed, the DHS enforcement statistics cited in the March 
20, 2020 Order included apprehensions of inadmissible aliens who 
attempted to cross a U.S. coastal border. See Exhs. 2-3, 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.
    \27\ See CDC, COVID View Weekly Summary (updated May 8, 2020), 
https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/.
---------------------------------------------------------------------------

    Land and coastal POEs and Border Patrol stations are not structured 
or equipped to implement recommended COVID-19 screening, isolation/
quarantine, or social distancing protocols for even small numbers of 
covered aliens. As noted in the March 20, 2020 Order, the holding areas 
of POEs and Border Patrol stations were designed for the purpose of 
short-term processing and holding in a congregate setting. The vast 
majority of these facilities lack the areas needed to effectively 
isolate or quarantine covered aliens while COVID-19 test results are 
pending. Moreover, the process of screening and isolating/quarantining 
covered aliens suspected of COVID-19 infection would require covered 
aliens to move throughout various sections of the facility, creating a 
risk of exposure to all nearby--including DHS personnel and other 
aliens.
    I hereby amend the March 20, 2020 Order and April 20, 2020 
Extension by adding the modifier ``coastal'' so that this Amended Order 
and Extension expressly applies to land and coastal POE and Border 
Patrol stations operated by DHS at or near the border with Canada or 
Mexico. Accordingly, the definition of ``covered alien'' is amended 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 or coastal Port of Entry (POE) or 
Border Patrol station at or near the United States border with 
Canada or Mexico, subject to exceptions.\28\
---------------------------------------------------------------------------

    \28\ CDC recognizes that in certain limited instances, a fact-
based inquiry may be required to determine whether individuals are 
covered aliens within the meaning of the Amended Order and 
Extension. For example, it may be unclear whether individuals who 
arrive at a coastal border by boat departed from Mexico, or another 
country, such as Haiti. CDC defers to DHS regarding the operational 
considerations necessary to address such scenarios.

    This Amendment and Extension does not alter any of the exclusions 
or exceptions to the March 20, 2020 Order or April 20, 2020 Extension. 
Like the March 20, 2020 Order and April 20, 2020 Extension, the Amended 
Order and Extension 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. The Amended Order and Extension also 
does not apply to persons whom customs officers determine, with 
approval from a supervisor, should be excepted based on the totality of 
the circumstances, including consideration of significant law 
enforcement, officer and public safety, humanitarian, and public health 
interests.\29\ 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.
---------------------------------------------------------------------------

    \29\ In addition to CBP and U.S. Coast Guard officers, customs 
officers include any agent or other person, including foreign law 
enforcement officers, authorized by law or designated by the 
Secretary of Homeland Security to perform the duties of a customs 
officer. See 19 U.S.C. 1401(i).
---------------------------------------------------------------------------

VI. Extended Duration Subject to Recurring 30 Day Review

    As discussed above, the number of confirmed cases of COVID-19 in 
Canada, Mexico, and the United States continue to increase. The COVID-
19 public health emergency determination by the Secretary of HHS has 
remained in effect since February 4, 2020.\30\ As individual states in 
the United States enter different phases of the pandemic, the demand 
for COVID-19-related care and the challenges of providing that care are 
rapidly changing. Although some states are beginning to relax

[[Page 31508]]

restrictions and plan for the reopening of their communities, the 
reopening process will occur in phases that are closely tied to local 
infection rates, as well as other considerations. As the United States 
collectively determines how to best balance protecting public health 
with resuming normal activities, it is critical that the country 
continues to adhere to existing containment strategies, where 
possible--including the suspended introduction of covered aliens.
---------------------------------------------------------------------------

    \30\ Determination of Public Health Emergency, 85 FR 7316 (Feb. 
7, 2020); see also HHS Secretary, ``Renewal of Determination That A 
Public Health Emergency Exists,'' April 21, 2020, available at: 
https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-21apr2020.aspx.
---------------------------------------------------------------------------

    Furthermore, although stay-at-home orders and social distancing 
have been an important part of controlling the COVID-19 pandemic and 
``flattening the curve,'' these strategies alone cannot eliminate the 
risk of COVID-19 in the United States. Lasting protection from COVID-19 
will be achieved with a widely-available vaccine that confers immunity 
to the uninfected, widely-available therapeutics for those who are 
infected, or some combination of both.\31\ While there is unprecedented 
collaboration between public and private stakeholders to develop 
vaccines and therapeutics for COVID-19, a widely available finished 
product is still months away.
---------------------------------------------------------------------------

    \31\ CDC does not consider Remdesivir to be a therapeutic for 
COVID-19 for the purposes of the Amended Order and Extension because 
Remdesivir is not currently approved by the Food and Drug 
Administration to treat COVID-19.
---------------------------------------------------------------------------

    The public health risks that are the basis for this Amended Order 
and Extension are unlikely to abate in the coming months. Covered 
aliens cannot be introduced into the congregate holding areas of land 
and coastal POEs and Border Patrol stations without significantly 
increasing the risk of infection among DHS personnel and others in 
those facilities. Accordingly, this Amended Order and Extension shall 
remain in effect 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.
    CDC shall reassess the Order every 30 days to determine whether the 
latest relevant information regarding the COVID-19 pandemic warrants 
continued implementation, or whether the Order should be modified or 
terminated.

VII. Determination and Implementation

    Based on both the foregoing and additional insight gained over the 
past two months, I find that the determinations underlying the March 
20, 2020 Order and April 20, 2020 Extension remain correct, and that 
the situation in Canada, Mexico, and the United States continues to 
require suspension of the introduction of covered aliens into land and 
coastal POEs and Border Patrol stations at or near the border in order 
to protect the public health from COVID-19.
    The March 20, 2020 Order and April 20, 2020 Extension were based on 
the risk of introduction of individuals who have traveled through 
Canada and Mexico into the congregate settings of POEs and Border 
Patrol stations. Because COVID-19 is a contagious disease spreading 
throughout Canada and Mexico, individuals coming from these countries 
pose a risk of introducing or spreading COVID-19 into the United States 
once they enter POEs and Border Patrol stations at or near the border. 
Because covered aliens lack proper immigration documentation for 
entering the United States, they would have been likely to spend a 
material amount of time (i.e., hours or days) in the congregate holding 
areas of POEs and Border Patrol stations while they undergo immigration 
processing. POEs and Border Patrol stations have capacity only for 
short-term processing and holding of inadmissible aliens. They were 
never intended to provide the medical screening, monitoring, and 
isolation functions needed to contain COVID-19, especially on the scale 
demanded by the ongoing pandemic. As POEs and Border Patrol stations 
lack appropriate medical capabilities, any COVID-19-related care of 
covered aliens would have to be met by local healthcare systems in the 
United States, which are already straining to respond to the needs of 
the domestic population.
    Moreover, due to their lack of legal immigration status, there is 
significant uncertainty that covered aliens would be able to 
effectively self-quarantine, self-isolate, or otherwise comply with 
existing social distancing guidelines, if they were conditionally 
released. CDC and local public health jurisdictions simply lack the 
resources and personnel necessary to effectively monitor covered aliens 
who would otherwise be conditionally released into the United States 
but for the Order. Accordingly, covered aliens must be returned to the 
country from which they entered the United States, to their country of 
origin, or to another appropriate location.
    The statistical information provided by DHS shows the March 20, 
2020 Order and April 20, 2020 Extension have significantly reduced the 
number of covered aliens in custody at POEs and Border Patrol stations, 
practically eliminating one channel through which COVID-19 can enter 
the United States. In light of the current lack of a widely available 
vaccine or therapeutic for COVID-19, protecting the public health 
warrants further extending the Order.
    Accordingly, I determine that COVID-19 remains a contagious disease 
that is present in many countries including Canada and Mexico; covered 
aliens arriving from those countries pose a risk of further introducing 
or spreading COVID-19 into the United States while they are held in the 
congregate holding areas of POEs and Border Patrol stations at or near 
the border; and this risk is serious enough to require suspending the 
introduction of such covered aliens into all land and coastal POEs and 
Border Patrol stations at or near the border with Canada or Mexico that 
would otherwise hold covered aliens in a congregate setting.
    I consulted with DHS before issuing this Amended Order and 
Extension and requested that DHS continue to implement the operational 
plan developed to carry out the March 20, 2020 Order and April 20, 2020 
Extension because CDC does not have the capability, resources, or 
personnel needed to alternatively issue quarantine or isolation 
orders.\32\
---------------------------------------------------------------------------

    \32\ 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 and Coast Guard 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.
---------------------------------------------------------------------------

    This Amended Order and Extension applies to all persons traveling 
from Canada or Mexico (regardless of their country of origin) who would 
otherwise be introduced into a congregate setting in any land or 
coastal POE or Border Patrol station at or near the border with Canada 
and Mexico, subject to exceptions.
    This Amended Order and Extension 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 Amended 
Order and Extension does not apply to persons whom customs officers 
determine, with approval from a supervisor, should be excepted based on 
the totality of the circumstances, including consideration of 
significant

[[Page 31509]]

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.
    This Amended Order and Extension 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 is not required because the foregoing discussion 
shows that there is good cause to dispense with prior public notice and 
the opportunity to comment on this order and a delay in effective 
date.\33\ 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.
---------------------------------------------------------------------------

    \33\ See 5 U.S.C. 553(b)(B) and (d)(3).
---------------------------------------------------------------------------

* * * * *
    This Amended Order and Extension goes into effect at 12:00 a.m. 
Eastern Daylight Time (EDT) on May 21, 2020 and shall remain in effect 
until I determine that the danger of further introduction of COVID-19 
into the United States has ceased to be a serious danger to the public 
health, and the continuation of the Order is no longer necessary to 
protect the public health. Upon making this determination, I will 
publish a notice in the Federal Register terminating this Order and its 
Extensions. CDC shall reassess the Order every 30 days to determine 
whether current conditions warrant continued implementation, 
modification, or termination of the Order. I may further amend or 
extend the Order as needed to protect the public health.
* * * * *

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: May 19, 2020.
Robert K. McGowan,
Chief of Staff, Centers for Disease Control and Prevention.
[FR Doc. 2020-11179 Filed 5-20-20; 4:15 pm]
BILLING CODE 4163-18-P