Public Health Reassessment and Immediate Termination of Order Suspending the Right To Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists With Respect to Unaccompanied Noncitizen Children, 15243-15253 [2022-05687]
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Federal Register / Vol. 87, No. 52 / Thursday, March 17, 2022 / Notices
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Disease Control and
Prevention
Public Health Reassessment and
Immediate Termination of Order
Suspending the Right To Introduce
Certain Persons From Countries
Where a Quarantinable Communicable
Disease Exists With Respect to
Unaccompanied Noncitizen Children
Centers for Disease Control and
Prevention (CDC), Department of Health
and Human Services (HHS).
ACTION: General notice.
AGENCY:
The Centers for Disease
Control and Prevention (CDC), located
within the Department of Health and
Human Services (HHS), is hereby
terminating the Order Suspending the
Right to Introduce Certain Persons from
Countries Where a Quarantinable
Communicable Disease Exists, issued on
August 2, 2021 (August Order), and all
related prior orders issued pursuant to
the authorities in sections 362 and 365
of the Public Health Service (PHS) Act
and the implementing regulation, to the
extent they apply to Unaccompanied
Noncitizen Children (UC).
DATES: This Order was implemented
March 11, 2022.
FOR FURTHER INFORMATION CONTACT:
Jennifer Buigut, Division of Global
Migration and Quarantine, National
Center for Emerging and Zoonotic
Infectious Diseases, Centers for Disease
Control and Prevention, 1600 Clifton
Road NE, MS H16–4, Atlanta, GA
30329. Email: dgmqpolicyoffice@
cdc.gov.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Background
Coronavirus disease 2019 (COVID–19)
is a quarantinable communicable
disease caused by the SARS–CoV–2
virus. As part of U.S. government efforts
to mitigate the introduction,
transmission, and spread of COVID–19,
CDC issued the August Order, replacing
a prior order issued on October 13, 2020
(October Order) which continued a
series of orders issued pursuant to 42
U.S.C. 265, 268 and the implementing
regulation at 42 CFR 71.40, suspending
the right to introduce certain persons
into the United States from countries or
places where the quarantinable
communicable disease exists in order to
protect the public health from an
increased risk of the introduction of
COVID–19 (CDC Orders).
The CDC Orders issued under 42
U.S.C. 265, 268 and 42 CFR 71.40 were
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intended to reduce the risk of COVID–
19 introduction, transmission, and
spread at POE and U.S. Border Patrol
stations by significantly reducing the
number and density of covered
noncitizens held in these congregate
settings and thereby reducing risks to
U.S. citizens and residents, Department
of Homeland Security/Customs and
Border Patrol personnel and noncitizens
at the facilities, and local community
healthcare systems. CDC has deemed
the measures included in the CDC
Orders necessary for the protection of
public health during the ongoing
COVID–19 pandemic.
The August Order continued a
suspension of the right to introduce
‘‘covered noncitizens,’’ as defined
below, into the United States along the
U.S. land and adjacent coastal borders.
The August Order specifically excepted
UC and incorporated an exception for
UC issued by CDC on July 16, 2021 (July
Exception). Based on the public health
landscape, the current status of the
COVID–19 pandemic, the situation in
congregate settings where UC seeking to
enter the United States are processed
and held, and the procedures in place
for the processing of UC in such
congregate settings, CDC has determined
that a suspension of the right to
introduce UC is not necessary to protect
U.S. citizens, U.S. nationals, lawful
permanent residents, personnel and
noncitizens at the (POE) and U.S.
Border Patrol stations, and destination
communities in the United States at this
time. This termination as to UC
supersedes the July Exception
incorporated in the August Order. The
present termination does not address
the application of the August Order to
individuals in family units (FMU) or
single adults (SA).
The August Order applied specifically
to covered noncitizens, defined as
‘‘persons traveling from Canada or
Mexico (regardless of their country of
origin) who would otherwise be
introduced into a congregate setting in
a POE or U.S. Border Patrol station at or
near the U.S. land and adjacent coastal
borders subject to certain exceptions
detailed below; this includes
noncitizens who do not have proper
travel documents, noncitizens whose
entry is otherwise contrary to law, and
noncitizens who are apprehended at or
near the border seeking to unlawfully
enter the United States between POE.’’
Three groups typically make up covered
noncitizens—single adults (SA),
individuals in family units (FMU), and
unaccompanied noncitizen children
(UC). UC encountered in the United
States were specifically excepted from
the August Order based on its explicit
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15243
incorporation by reference of CDC’s July
Exception of UC.
UC are generally treated differently
than other individuals apprehended at
the border under ordinary immigration
laws. When section 265 does not apply,
UC generally are transferred to the care
and custody of HHS’s Office of Refugee
Resettlement (ORR) pursuant to the
Trafficking Victims Protection
Reauthorization Act of 2008. ORR is
able to care for UC while implementing
appropriate COVID–19 mitigation
measures, given ORR’s robust network
of care facilities that provide testing and
medical care, and DHS has already been
excepting UC in accordance with CDC’s
August Order. With CDC’s assistance
and guidance, ORR also has
implemented COVID–19 testing
protocols for UC in its care and
continues to practice other mitigation
measures to prevent and curtail
transmission of the SARS–CoV–2 virus
among UC in its care.
In the August Order, CDC committed
to reassessing the public health
circumstances necessitating the Order at
least every 60 days by reviewing the
latest information regarding the status of
the COVID–19 public health emergency
and associated public health risks,
including migration patterns, sanitation
concerns, and any improvement or
deterioration of conditions at the U.S.
borders. Following a Preliminary
Injunction issued by the U.S. District
Court for the Northern District of Texas
ordering that the July Exception for UC
and its incorporation into the August
Order be enjoined, CDC determined that
it was necessary to conduct an
immediate reassessment with respect to
UC. This reassessment takes into
account the current status of the
pandemic.
Based on the reassessment, the CDC
Director finds that there is no longer a
serious danger of the introduction,
transmission, and spread of COVID–19
into the United States as a result of
entry of UC and that a suspension of the
introduction of UC is not required in the
interest of public health. The CDC
Director has determined that suspension
of entry of UC is not necessary to protect
U.S. citizens, U.S. nationals, lawful
permanent residents, personnel and
noncitizens at POE and U.S. Border
Patrol stations, or destination
communities in the United States. In
light of that determination, CDC is
hereby terminating the CDC Orders
issued pursuant to 42 U.S.C. 265, 268
and 42 CFR 71.40 as they apply to UC,
effective immediately. The current 60day review process is scheduled to end
on March 30, 2022, and CDC will
conclude its reassessment of whether
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the Order remains necessary in whole or
part to protect the public health with
respect to SA and FMU by that date.
Legal Authority
CDC is hereby immediately
terminating the August Order and all
prior orders issued pursuant to sections
362 and 365 of the PHS Act (42 U.S.C.
265, 268) and the implementing
regulation at 42 CFR 71.40 to the extent
they apply to UC.
Referenced Order
A copy of the Order is provided
below, and a copy of the signed Order
can be found at https://www.cdc.gov/
coronavirus/2019-ncov/more/pdf/Notice
UnaccompaniedChildren-update.pdf.
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) and 42 CFR 71.40
Public Health Reassessment and
Immediate Termination of Order
Suspending the Right To Introduce
Certain Persons From Countries Where
a Quarantinable Communicable Disease
Exists With Respect to Unaccompanied
Noncitizen Children
Executive Summary
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The Centers for Disease Control and
Prevention (CDC), a component of the
U.S. Department of Health and Human
Services (HHS), is hereby terminating
the Order Suspending the Right to
Introduce Certain Persons from
Countries Where a Quarantinable
Communicable Disease Exists, issued on
August 2, 2021 (August Order),1 and all
related prior orders issued pursuant to
the authorities in sections 362 and 365
of the Public Health Service (PHS) Act
(42 U.S.C. 265, 268) and the
implementing regulation at 42 CFR
71.40 (CDC Orders),2 to the extent that
they apply to Unaccompanied
Noncitizen Children (UC). The August
Order continued a suspension of the
right to introduce ‘‘covered
noncitizens,’’ as defined in the Order,3
into the United States along the U.S.
1 Available at https://www.cdc.gov/coronavirus/
2019-ncov/downloads/CDC-Order-SuspendingRight-to-Introduce-_Final_8-2-21.pdf (last visited
Mar. 7, 2022); see also 86 FR 42828 (Aug. 5, 2021).
2 The ‘‘CDC Orders’’ issued pursuant to these
legal authorities are found at 85 FR 17060 (Mar. 26,
2020), 85 FR 22424 (Apr. 22, 2020), 85 FR 31503
(May 26, 2020), 85 FR 65806 (Oct. 16, 2020), and
86 FR 42828 (Aug. 5, 2021) (fully incorporating by
reference 86 FR 38717 (July 22, 2021), see 86 FR
42828, 42829 at note 3).
3 See infra 1.
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land and adjacent coastal borders. The
August Order specifically excepted UC
and incorporated an exception for UC
issued by CDC on July 16, 2021 (July
Exception).4 The August Order states
that CDC will reassess at least every 60
days whether the Order remains
necessary to protect the public health.
CDC was in the process of assessing that
question in light of the current public
health situation. However, in response
to an order of the U.S. District Court for
the Northern District of Texas
preliminarily enjoining the July
Exception and the relevant portion of
the August Order based on concerns
about the adequacy of the CDC’s
explanation for those actions and
consistent with CDC’s continuing
review, CDC has reopened this issue
and reconsidered whether UC should be
subject to the CDC Orders. CDC hereby
concludes that UC should not be subject
to the CDC Orders based on the current
public health circumstances. Based on
the public health landscape, the current
status of the COVID–19 pandemic, the
situation in congregate settings where
UC seeking to enter the United States
are processed and held, and the
procedures in place for the processing of
UC in such congregate settings, CDC has
determined that a suspension of the
right to introduce UC is not necessary to
protect U.S. citizens, U.S. nationals,
lawful permanent residents, personnel
and noncitizens at the ports of entry
(POE) and U.S. Border Patrol stations,
and destination communities in the
United States at this time. This
termination as to UC supersedes the July
Exception incorporated in the August
Order. The present termination does not
address the application of the August
Order to individuals in family units
(FMU) or single adults (SA).
Outline of Reassessment and Order
I. Background
A. Public Health Landscape
B. Current Status of the COVID–19
Pandemic
1. Community COVID–19 Levels
2. Information Specific to UC
II. Public Health Reassessment
A. Changing Public Health Conditions
B. Public Health Factors Specifically
Relevant to UC Population
III. Legal Considerations
A. Concerns Raised by the District Court
4 Public Health Determination Regarding an
Exception for Unaccompanied Noncitizen Children
from Order Suspending the Right to Introduce
Certain Persons from Countries Where a
Quarantinable Communicable Disease Exists,
Centers for Disease Control and Prevention, https://
www.cdc.gov/coronavirus/2019-ncov/more/pdf/
NoticeUnaccompaniedChildren.pdf (July 16, 2021);
86 FR 38717 (July 22, 2021); see 86 FR 42828, 42829
at note 1 (Aug. 5, 2021) (which fully incorporated
by reference the July Exception relating to UC).
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B. Absence of Reliance Interests
C. Timing Considerations
D. Basis for Termination With Respect to
UC Under Sections 362 and 365 of the
PHS Act and 42 CFR 71.40
IV. Issuance and Implementation of the
Termination
A. Termination as to UC
B. APA Review
I. Background
Coronavirus disease 2019 (COVID–19)
is a quarantinable communicable
disease 5 caused by the SARS–CoV–2
virus. As part of U.S. Government
efforts to mitigate the introduction,
transmission, and spread of COVID–19,
CDC issued the August Order,6
replacing a prior order issued on
October 13, 2020 (October Order) which
continued a series of orders issued
pursuant to 42 U.S.C. 265, 268 and the
implementing regulation at 42 CFR
71.40,7 suspending the right to
introduce 8 certain persons into the
United States from countries or places
where the quarantinable communicable
disease exists in order to protect the
public health from an increased risk of
the introduction of COVID–19 (CDC
5 Quarantinable communicable diseases are any
of the communicable diseases listed in Executive
Order 13295, as provided under section 361 of the
Public Health Service Act (42 U.S.C. 264), 42 CFR
71.1. The list of quarantinable communicable
diseases currently includes cholera, diphtheria,
infectious tuberculosis, plague, smallpox, yellow
fever, viral hemorrhagic fevers (Lassa, Marburg,
Ebola, Crimean-Congo, South American, and others
not yet isolated or named), severe acute respiratory
syndromes (including Middle East Respiratory
Syndrome and COVID–19), influenza caused by
novel or reemergent influenza viruses that are
causing, or have the potential to cause, a pandemic,
and measles. See Exec. Order 13295, 68 FR 17255
(Apr. 4, 2003), as amended by Exec. Order 13375,
70 FR 17299 (Apr. 1, 2005) and Exec. Order 13674,
79 FR 45671 (July 31, 2014), 86 FR 52591 (Sep. 22,
2021).
6 See supra note 1.
7 Order Suspending the Right to Introduce Certain
Persons from Countries Where a Quarantinable
Communicable Disease Exists, 85 FR 65806 (Oct.
16, 2020). The October Order replaced the Order
Suspending Introduction of Certain Persons from
Countries Where a Communicable Disease Exists,
issued on March 20, 2020 (March Order), which
was subsequently extended and amended. 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, 85 FR 17060 (Mar.
26, 2020); 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,
85 FR 22424 (Apr. 22, 2020); 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, 85 FR 31503
(May 26, 2020).
8 Suspension of the right to introduce means to
cause the temporary cessation of the effect of any
law, rule, decree, or order pursuant to which a
person might otherwise have the right to be
introduced or seek introduction into the United
States. 42 CFR 71.40(b)(5).
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Orders).9 The August Order applied
specifically to covered noncitizens,
defined as ‘‘persons traveling from
Canada or Mexico (regardless of their
country of origin) who would otherwise
be introduced into a congregate setting
in a POE or U.S. Border Patrol station 10
at or near the U.S. land and adjacent
coastal borders subject to certain
exceptions detailed below; this includes
noncitizens who do not have proper
travel documents, noncitizens whose
entry is otherwise contrary to law, and
noncitizens who are apprehended at or
near the border seeking to unlawfully
enter the United States between
POE.’’ 11
Three groups typically make up
covered noncitizens—single adults
(SA),12 individuals in family units
(FMU),13 and unaccompanied
noncitizen children (UC).14 UC
encountered in the United States were
specifically excepted from the August
Order 15 based on its explicit
incorporation by reference of CDC’s July
Exception of UC.16 The August Order
and July Exception distinguished the
immigration processing available to SA
and FMU from that available to UC.17
While all three groups are processed by
U.S. Customs and Border Protection
(CBP), a component of the Department
of Homeland Security (DHS), following
that initial intake, UC are referred to
HHS’ Office of Refugee Resettlement
(ORR) for care. At both the CBP and
ORR stages, UC receive special
attention.
The series of CDC Orders issued
under 42 U.S.C. 265, 268 and 42 CFR
71.40 were intended to reduce the risk
of COVID–19 introduction,
transmission, and spread at POE and
9 See
supra note 2.
and U.S. Border Patrol stations are
operated by U.S. Customs and Border Protection
(CBP), an agency within Department of Homeland
Security (DHS).
11 86 FR 42828, 42841.
12 A single adult (SA) is any noncitizen adult 18
years or older who is not an individual in a ‘‘family
unit.’’ 86 FR 42828, 42830 at note 13.
13 An individual in a family unit (FMU) includes
any individual in a group of two or more
noncitizens consisting of a minor or minors
accompanied by their adult parent(s) or legal
guardian(s). Id. at note 14.
14 CDC understands UC to be a class of
individuals similar to or the same as those
individuals who would be considered
‘‘unaccompanied alien children’’ (see 6 U.S.C. 279)
for purposes of HHS Office of Refugee Resettlement
custody, were DHS to make the necessary
immigration determinations under Title 8 of the
U.S. Code. 86 FR 38717, 38718 at note 4.
15 86 FR 42828, 42829 at note 3.
16 See supra note 4.
17 See 86 FR 42828, 42835–37 (describing the
processing of noncitizen SA and FMU by DHS
components, CBP and ICE, under both regular Title
8 immigration and under an order pursuant to 42
U.S.C. 265).
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10 POE
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U.S. Border Patrol stations by
significantly reducing the number and
density of covered noncitizens held in
these congregate settings and thereby
reducing risks to U.S. citizens, U.S.
nationals, lawful permanent residents,
DHS/CBP personnel and noncitizens at
the facilities, and local community
healthcare systems. CDC has deemed
the measures included in the CDC
Orders necessary for the protection of
public health during the ongoing
COVID–19 pandemic.
In the August Order, CDC committed
to reassessing the public health
circumstances necessitating the Order at
least every 60 days by reviewing the
latest information regarding the status of
the COVID–19 public health emergency
and associated public health risks,
including migration patterns, sanitation
concerns, and any improvement or
deterioration of conditions at the U.S.
borders.18 Following a Preliminary
Injunction issued by the U.S. District
Court for the Northern District of Texas
ordering that the July Exception for UC
and its incorporation into the August
Order be enjoined,19 CDC determined
that it was necessary to conduct an
immediate reassessment with respect to
UC. This reassessment takes into
account the current status of the
pandemic. For example, CDC recently
released its COVID–19 Community
Levels framework, which allows
communities and individuals to make
decisions and reduce COVID–19
mitigation measures as allowed by local
context and unique needs.20 This was
followed by an updated National
COVID–19 Preparedness Plan, which
lays out the roadmap to help the nation
continue to fight COVID–19 in the
future, while also allowing resumption
of more normal routines.21
Based on the reassessment below, the
CDC Director finds that there is no
longer a serious danger of the
introduction, transmission, and spread
of COVID–19 into the United States as
a result of entry of UC and that a
suspension of the introduction of UC is
not required in the interest of public
health. The CDC Director has
determined that suspension of entry of
UC is not necessary to protect U.S.
citizens, U.S. nationals, lawful
18 86
FR 42828, 42841.
infra II.B.
20 COVID–19 Community Levels, Centers for
Disease Control and Prevention, https://
www.cdc.gov/coronavirus/2019-ncov/science/
community-levels.html (updated Mar. 10, 2022).
21 National COVID–19 Preparedness Plan—March
2022, available at https://www.whitehouse.gov/wpcontent/uploads/2022/03/NAT-COVID-19PREPAREDNESS-PLAN.pdf (last visited Mar. 9,
2022).
19 See
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permanent residents, personnel and
noncitizens at POE and U.S. Border
Patrol stations, or destination
communities in the United States. In
light of that determination, and as
described below, CDC is hereby
terminating the CDC Orders issued
pursuant to 42 U.S.C. 265, 268 and 42
CFR 71.40 as they apply to UC, effective
immediately.
A. Public Health Landscape
Since late 2019, SARS–CoV–2, the
virus that causes COVID–19, has spread
throughout the world, resulting in a
pandemic. Since the beginning of the
pandemic, the U.S. Government
response has focused on taking actions
and providing guidance based on the
best available scientific information. As
the waves of the pandemic have surged
and ebbed, so too have actions taken in
response to the pandemic. Earlier
phases of the pandemic required
extraordinary actions by the U.S.
Government and society at large.
However, epidemiologic data, scientific
knowledge, and the availability of
public health mitigation measures,
vaccines, and therapeutics have
permitted many of those early actions to
be pulled back in favor of more
nuanced, targeted, and narrowlytailored guidance that provides a less
restrictive means to prevent and control
the SARS–CoV–2 virus and COVID–19.
As of March 11, 2022, there have been
over 450 million confirmed cases of
COVID–19 globally, resulting in over six
million deaths.22 The United States has
reported over 79 million cases resulting
in over 960,000 deaths due to the
disease 23 and is currently averaging
around 49,000 new cases of COVID–19
a day as of March 11, 2022.24
B. Current Status of the COVID–19
Pandemic
The highly infectious SARS–CoV–2
variant B.1.1.529 (Omicron) is
responsible for the currently receding
wave of the pandemic. The Omicron
variant resulted in an extraordinary and
unparalleled increase in COVID–19
cases around the world.25 The United
22 Coronavirus disease (COVID–19) pandemic,
World Health Organization, https://
covid19.who.int/ (last visited Mar. 11, 2022).
23 COVID Data Tracker, Centers for Disease
Control and Prevention, https://covid.cdc.gov/
covid-data-tracker/#datatracker-home (last visited
Mar. 11, 2022).
24 United States COVID–19 Cases, Deaths, and
Laboratory Testing (NAATs) by State, Territory, and
Jurisdiction, Centers for Disease Control and
Prevention, https://covid.cdc.gov/covid-datatracker/#cases_community (last visited Mar. 11,
2022).
25 Omicron was first reported to the World Health
Organization (WHO) by South Africa on November
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States recorded its highest seven-day
moving average number of cases on
January 15, 2022.26 Following this
unprecedented peak, the number of
COVID–19 cases in the United States
began to rapidly decrease, falling by
95% as of March 9, 2022.27 After a brief
period of continued increases,28 deaths
and hospitalizations also reversed
course and began a swift descent.29
These welcomed changes were due, in
part, to widespread population
immunity 30 and a generally lower
overall risk of severe disease and are
responsible for allowing the United
States to return to more normal routines
safely.31
24, 2021, and on November 26, 2021, WHO
designated it a Variant of Concern (VOC). On
November 30, 2021, the U.S. also decided to
classify Omicron as a VOC. This decision was based
on a number of factors, including detection of cases
attributed to Omicron in multiple countries, even
among persons without travel history, transmission
and replacement of Delta as the predominant
variant in South Africa, changes in the spike
protein of the virus, and concerns about potential
decreased effectiveness of vaccination and
treatments.
26 See Trends in Number of COVID–19 Cases and
Deaths in the U.S. Reported to CDC, by State/
Territory, Centers for Disease Control and
Prevention, https://covid.cdc.gov/covid-datatracker/#trends_dailycases, citing a seven-day
moving average of 809,202 cases on January 15,
2022 (last updated Mar. 9, 2022).
27 Id. (noting a peak of 809,204 seven-day moving
average number of cases to 40,433 seven-day
moving average number of cases on March 7, 2022).
28 COVID Data Tracker Weekly Review: Stay Up
to Date—Interpretive Summary for Jan. 28, 2022,
Centers for Disease Control and Prevention, https://
www.cdc.gov/coronavirus/2019-ncov/covid-data/
covidview/past-reports/01282022.html (Jan. 28,
2022).
29 See New Admissions of Patients with
Confirmed COVID–19, United States, Centers for
Disease Control and Prevention, https://
covid.cdc.gov/covid-data-tracker/#new-hospitaladmissions (last updated Mar. 10, 2022); see also
supra note 25.
30 In addition to vaccine-induced immunity,
studies have consistently shown that infection with
SARS–CoV–2 lowers an individual’s risk of
subsequent infection and an even lower risk of
hospitalization and death. National estimates of
both vaccine- and infection-induced antibody
seroprevalence have been measured among blood
donors; as of December 2021 these measures
demonstrated 94.7% of persons 16 years and older
showed antibody seroprevalence for COVID–19.
Science Brief: Indicators for Monitoring COVID–19
Community Levels and Making Public Health
Recommendations, Centers for Disease Control and
Prevention, https://www.cdc.gov/coronavirus/2019ncov/science/science-briefs/indicators-monitoringcommunity-levels.html (updated Mar. 4, 2022);
Nationwide COVID–19 Infection- and VaccinationInduced Antibody Seroprevalence (Blood
donations), Centers for Disease Control and
Prevention, https://covid.cdc.gov/covid-datatracker/#nationwide-blood-donor-seroprevalence
(last updated Feb. 18, 2022).
31 Transcript for CDC Media Telebriefing: Update
on COVID–19, Centers for Disease Control and
Prevention, https://www.cdc.gov/media/releases/
2022/t0225-covid-19-update.html (Feb. 25, 2022).
COVID–19 vaccines are highly effective against
severe illness and death. Widespread uptake of
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1. Community COVID–19 Levels
During the first four waves of the
pandemic, CDC relied on a particular
formula to calculate community
transmission levels and update COVID–
19 prevention strategies accordingly.32
These indicators reflected the goal of
limiting transmission in anticipation of
vaccines becoming available.33 The CDC
Director examined these indicators in
conducting the public health assessment
for the August Order.34
In February 2022, given increased
levels of population immunity, available
therapies, and overall milder disease
associated with the Omicron variant,35
CDC released a new framework,
‘‘COVID–19 Community Levels,’’
reflecting a shift in focus from
eliminating SARS–CoV–2 transmission
toward disease control and
infrastructure protection.36 This new
framework examines three currently
relevant metrics: New COVID–19
hospital admissions per 100,000
population in the past seven days, the
percent of staffed inpatient beds
occupied by patients with COVID–19,
and total new COVID–19 cases per
100,000 population in the past seven
days.37 CDC determined that data on
these vaccines, coupled with higher rates of
infection-induced immunity at the population level,
as well as the broad availability of mitigation
measures and effective therapeutics have moved the
pandemic to a different phase. See also State of the
Union Address, https://www.whitehouse.gov/stateof-the-union-2022/_( (Mar. 1, 2022).
32 In September 2020, CDC released the Indicators
of Community Transmission framework, which
incorporated two metrics to define community
transmission: Total new cases per 100,000 persons
in the past seven days, and percentage of Nucleic
Acid Amplification Test results that are positive
during the past seven days. CDC also encouraged
local decision-makers to also assess the following
factors, in addition to levels of SARS–CoV–2, to
inform the need for layered prevention strategies
across a range of settings: Health system capacity,
vaccination coverage, capacity for early detection of
increases in COVID–19 cases, and populations at
risk for severe outcomes from COVID–19. See
Christie A, Brooks JT, Hicks LA, et al. Guidance for
Implementing COVID–19 Prevention Strategies in
the Context of Varying Community Transmission
Levels and Vaccination Coverage. MMWR Morb
Mortal Wkly Rep. ePub: 27 July 2021. DOI: https://
dx.doi.org/10.15585/mmwr.mm7030e2.
33 Id.
34 Supra note 1.
35 Supra note 31.
36 Indicators for Monitoring COVID–19
Community Levels and Implementing Prevention
Strategies, Centers for Disease Control and
Prevention, https://www.cdc.gov/coronavirus/2019ncov/downloads/science/Scientific-Rationalesummary_COVID-19-Community-Levels_
2022.02.23.pptx (Feb. 23, 2022).
37 New COVID–19 admissions and the percent of
staffed inpatient beds occupied represent the
current potential for strain on the health system,
while data on new cases acts as an early warning
indicator of potential increases in health system
strain in the event of a COVID–19 surge.
Community vaccination coverage and other local
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disease severity and healthcare system
strain complement case rates, and these
data together are more informative for
public health recommendations for
individual, organizational, and
jurisdictional decisions than data on
community transmission rates alone.38
This comprehensive approach to
assessing COVID–19 Community Levels
can inform decisions about layered
COVID–19 prevention strategies,
including vaccination and masking to
reduce medically significant disease and
limit strain on the healthcare system
and other societal functions.39
Using these data, the COVID–19
Community Levels for each county are
classified as low, medium, or high. CDC
recommends using county COVID–19
Community Levels to help determine
which mitigation measures, such as
screening, testing, and mask use, should
be implemented within a community.40
As of March 10, 2022, 72.7% of U.S.
counties are classified at the low
COVID–19 Community Level, 21.2% of
U.S. counties are classified at the
medium COVID–19 Community Level,
and 6% of U.S. counties are classified
at the high COVID–19 Community
Level.41 Furthermore, 82.8% of the U.S.
population lives in counties classified
as ‘‘low,’’ 15% live in counties
classified as ‘‘medium,’’ and 2.2% live
in counties classified as ‘‘high.’’ 42
2. Information Specific to UC
Since the beginning of the pandemic,
CBP has maintained myriad COVID–19
mitigation efforts in order to protect
noncitizens and its workforce.43 The
information, like early alerts from surveillance,
such as through wastewater or the number of
emergency department visits for COVID–19, when
available, can also inform decision making for
health officials and individuals. Supra note 21.
38 Supra note 31.
39 Id.
40 See supra note 21.
41 COVID–19 by County, Centers for Disease
Control and Prevention, https://www.cdc.gov/
coronavirus/2019-ncov/your-health/covid-bycounty.html (last updated Mar. 10, 2022).
Furthermore, 82.8% of the U.S. population lives in
counties classified as ‘‘low,’’ 15% live in counties
classified as ‘‘medium,’’ and 2.2% live in counties
classified as ‘‘high.’’
42 Per internal CDC calculations.
43 These mitigation efforts include installing
plexiglass dividers in facilities, enhancing
ventilation systems, adhering to CDC cleaning and
disinfection guidance, and providing masks to
migrants, as well as providing PPE to CBP
personnel. These measures generally follow the
infection prevention control referred to as the
hierarchy of controls. See Hierarchy of Controls,
Centers for Disease Control and Prevention,
available at https://www.cdc.gov/niosh/topics/
hierarchy/default.html (last visited Mar. 9, 2022).
The hierarchy of controls is used as a means of
determining how to implement feasible and
effective control solutions. The hierarchy is
outlined as: (1) Elimination (physically remove the
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DHS Office of the Chief Medical Officer
has worked with local community
partners whose work is critical to
moving individuals safely out of CBP
custody and through the appropriate
immigration pathway. Through these
partnerships, DHS has supported state,
local, tribal, and territorial partners and
NGOs in developing robust COVID–19
testing and quarantine programs along
the Southwest Border. In addition,
vaccine uptake among the CBP
workforce has reached approximately
88% among personnel on the U.S.Mexico border.
CDC understands that in the months
between the issuance of the August
Order and now, CBP has implemented
a robust set of COVID–19 mitigation
protocols that have substantially
reduced the potential for COVID–19
spread among UC in CBP and ORR
facilities. For many months, UC had
been tested as they were leaving CBP
facilities, prior to transfer to large ORR
facilities. On August 25, 2021, CBP
began testing UC during CBP’s intake
process as well, prior to placing UC in
congregate settings. Intake testing of UC
started with those encountered in the
Rio Grande Valley (RGV) Sector of the
U.S. Border Patrol—the Sector that has
encountered more than 54% percent of
UC over the past 12 months. This model
has subsequently been expanded to
other high-encounter Border Patrol
Sectors, including Tucson (January 26,
2022), El Paso (February 3, 2022), and
Del Rio (February 3, 2022). Taken
together, these Sectors account for over
87% of UC encounters over the past 12
months—indicating that the large
majority of UC are now going through
this intake processing protocol.
Pursuant to these protocols, UC
encountered by Border Patrol agents are
tested for COVID–19 in a sheltered,
open air location during intake
processing prior to entering congregate
settings, thus ensuring the ability to
segregate UC by test results, provide
appropriate care to UC who have tested
positive, and minimize further spread.
UC that test positive for COVID–19 are
cohorted together and kept physically
separate from UC who test negative. UC
who test positive for COVID–19 go
through a streamlined designation and
referral process for ORR placement that
is substantially faster than the process
for other UC, generally resulting in
transfers to ORR within 8 to 12 hours of
encounter. UC who test positive are
transported together (and separately
from other UC) to designated ORR
facilities that are designed to provide
robust care for COVID–19 positive
children and to minimize the chance of
transmission. UC who test negative go
through the normal processing, as
applied to UC, and are tested again
when they are discharged from CBP
facilities prior to transport to large ORR
facilities. UC who test positive at this
second stage are routed to designated
ORR facilities to minimize the potential
for COVID–19 spread. All UC are subject
to masking requirements while in CBP
custody.
Since the inception of these intake
processing protocols, CBP has tested
more than 45,000 UC with an overall
positivity rate of 10%. Consistent with
the decline in COVID–19 positivity rates
more generally, the UC overall positivity
rate has been declining. During the first
week of March 2022, the overall
positivity rate for UC in CBP custody
was around 6%, down from a high of
nearly 20% in early February 2022.
CBP’s intake processing protocols
have also led to a significant decrease in
COVID–19 positivity rates for UC in
ORR care. Following the start of
COVID–19 testing for UC as part of the
CBP intake process in August, there was
a significant decrease in the proportion
of children referred to ORR from the
RGV Sector testing positive for COVID–
19 within the first four days of ORR
custody, as compared to the pre-testing
period. As of March 5, 2022, COVID–19
positivity rates in ORR shelter facilities
ranged from 4% to 15%—a number that
includes those in facilities designed
specifically to house COVID-positive
UC. Once UC are transferred to ORR
care, ORR has in place a range of other
mitigation measures, as detailed below,
to include universal and proper wearing
of masks, physical distancing, frequent
hand washing, cleaning and
disinfection, improved ventilation, staff
vaccination, and cohorting UC
according to their COVID–19 test status.
Due to operational and facility
constraints, CBP reports that it is not
able to replicate this robust COVID–19
testing and isolation program for SA and
FMU in its custody.
hazard); (2) Substitution (replace the hazard); (3)
Engineering Controls (isolate people from the
hazard); (4) Administrative Controls (change the
way people work); and (5) PPE (protect people with
Personal Protective Equipment). CBP also continues
to update the CBP Job Hazard Analysis and the CBP
COVID–19 toolkit based on the latest relevant
public health guidance.
A. Changing Public Health Conditions
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II. Public Health Reassessment
CDC continually reassesses the
development of the COVID–19
pandemic and the need for continued
measures under 42 U.S.C. 265, 268 and
42 CFR 71.40, the authorities that
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support the CDC Orders.44 The public
health reassessment for UC described
herein is based upon the most recent
science and data available to CDC.
Based upon these data, CDC has
determined that while the use of the
CDC Orders to reduce the numbers of
noncitizens held in congregate settings
in POEs and Border Patrol stations has
been part of the layered COVID–19
mitigation measures over the last two
years, less restrictive measures than
those outlined in prior CDC Orders are
now available with respect to UC to
mitigate the introduction, transmission,
and spread of COVID–19. While the
CDC Orders provided an important
COVID–19 mitigation measure during
certain phases of the pandemic by
reducing the number of noncitizens
held in congregate settings, other public
health measures such as workforce
testing, widespread vaccination, variant
action plans, and mitigation measures
specifically available for the UC
population, are now available to provide
necessary public health protection for
noncitizens, Americans, and the DHS
workforce.
CDC believes that the widespread
availability of tests for the general
public, in addition to other methods of
surveillance, will permit the workforce
to rapidly institute necessary mitigation
measures in the event that cases of
COVID–19 are detected. At the same
time, vaccination rates are increasing
both at home and abroad. Vaccination
among the American public and the
DHS workforce in particular has been
largely successful and, as stated in the
August Order, widespread vaccination
of federal employees and personnel in
congregate settings at POE and U.S.
Border Patrol stations is a critical step
toward the normalization of border
operations.45 Since August 2021,
vaccination rates in the countries of
origin for the current majority of UC
have also increased dramatically.46
Such increased global vaccination rates,
as well as higher rates of infectioninduced immunity globally, provide
additional layers of protection. As a
public health matter, CDC strongly
recommends that all individuals,
44 See
supra note 9.
most recently reported vaccination rates
between 75% and 91% among its U.S. Border Patrol
and Office of Field Operations personnel.
46 El Salvador, Guatemala, and Honduras
constitute the top three countries of origin for UC.
Rates of vaccination for each country are as follows:
El Salvador 65% fully vaccinated, 4.8% only partly
vaccinated; Guatemala: 31% fully vaccinated, 8.5%
only partly vaccinated; Honduras: 45% fully
vaccinated, 8.5% only partly vaccinated.
Coronavirus (COVID–19) Vaccinations, Our World
in Data, https://ourworldindata.org/covidvaccinations (last visited Mar. 11, 2022).
45 CBP
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including noncitizens, receive a
COVID–19 vaccine. This aligns with
CDC’s emphasis on global vaccination.
Even if full vaccination cannot be
assured, CDC believes vaccination of as
many people as possible provides some
level of protection against severe illness
and hospitalization, thereby protecting
citizens, noncitizens and the U.S.
healthcare system.
The August Order also highlighted the
threat posed by emerging variants and
the potential for a future vaccineresistant variant, either of which could
negatively impact U.S. communities and
local healthcare resources.47 Based in
part on these threats, CDC concluded at
that time that an Order under 42 U.S.C.
265 should remain in place, pending
further improvements in the public
health situation, and subject to
continual assessment.48 Since the
August Order, public health officials
have learned a great deal about variants
and how best to respond to them. In
response to Omicron, the U.S.
Government developed a
comprehensive plan for monitoring
COVID–19, swiftly adapting public
health tools to combat a new variant,
and deploying emergency resources to
help communities.49 This plan includes
a commitment to ensuring that variant
surveillance, vaccines, tests, and
treatments can be updated and deployed
quickly.50
As noted above, a significant majority
of the U.S. population currently lives in
an area classified as having a ‘‘low’’
COVID–19 Community Level,51
meaning most of the population can
operate under more relaxed COVID–19
mitigation strategies.52 Noteworthy for
purposes of this reassessment, as of
March 10, 2022, of the 24 U.S. counties
along the U.S.-Mexico border, 91% of
counties on the Southwest Border are
now classified as having a ‘‘low’’or
‘‘medium’’ COVID–19 Community
Level.53
47 86
FR 42828, 42837.
B. Public Health Factors Specifically
Relevant to UC Population
For all the reasons set forth above, it
is CDC’s assessment that there is no
longer a public health rationale to apply
to UC the August Order and all related
prior orders issued pursuant to 42
U.S.C. 265, 268 and 42 CFR 71.40.
Moreover, as explained in the July
Exception, UC are less likely than FMU
and SA to introduce COVID–19.54 In
addition, UC as a population are subject
to unique care within CBP and ORR
facilities.55 These facilities are able to
provide robust mitigation measures that
have proven to be effective in managing
COVID–19 and minimizing the risk of
spread. These reasons serve as an
additional basis to those outlined herein
for immediately terminating the August
Order and all prior Orders as to UC.
Following the temporary exception of
UC from expulsion in January 2021,
CDC formally excepted UC from the
then-in-place October 2020 Order in
July 2021. The July Exception was based
on a public health assessment of the
specific treatment of UC and the care
available to them through ORR and was
fully incorporated by reference into
CDC’s subsequent August Order.56
On March 4, 2022, the U.S. District
Court for the Northern District of Texas
granted a motion for Preliminary
Injunction brought by the State of Texas
and ordered that the July Exception for
UC and its incorporation into the
August Order be enjoined, with the
injunction stayed through Friday, March
11, 2022. Even prior to that court order,
CDC has been reviewing whether the
August Order should remain in place as
part of its regular public health
reassessment every 60 days. Although
CDC continues to complete the next
regularly scheduled reassessment, CDC
accelerated its ongoing and review
determined an immediate completion of
the assessment of the current public
health situation with regard to UC was
necessary due to the impending
effective date of the injunction. Based
48 Id.
49 See
supra note 22.
50 Id.
51 See
supra note 42.
supra note 31.
53 See supra note 41 (noting 54% (n=13) of
counties along the U.S.-Mexico border are
considered ‘‘Low’’ (San Diego County, CA; Imperial
County, CA; Luna, NM; Dona Ana County, NM;
Otero County, NM; Eddy County, NM; Lea County,
NM; Presidio County, TX; Brewster County, TX;
Terrell County, TX; Webb County, TX; Zapata
County, TX; Cameron County, TX); 37% of counties
(n=9) along the U.S.-Mexico border are classified as
having COVID–19 community levels ’’: Pima
County, AZ, Santa Cruz County, AZ; Cochise
County, AZ; El Paso County, TX; Hudspeth County,
TX; Val Verde County, TX; Kinney County, TX;
Maverick County, TX; and Starr County, TX); and
8% of counties (n=2) along the U.S.-Mexico border
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52 See
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are classified as having COVID–19 community
levels: Yuma, County, AZ and Hidalgo County, TX).
54 86 FR 38717 (July 22, 2021).
55 UC not subject to an order under 42 U.S.C. 265
are generally processed under immigration
processes under Title 8 of the U.S. Code and
referred from CBP to ORR for care and custody,
according to the usual legal framework governing
such referrals. Upon transfer to ORR custody, UC
are transported to facilities that operate under
cooperative agreements or contracts with HHS and
must meet ORR requirements to ensure a high level
of quality, child-focused care by appropriately
trained staff. At these facilities, case managers work
to identify and ultimately place UC with vetted
sponsors (usually family members within the
United States). 86 Fed. Red. 38717, 38719 (July 22,
2020).
56 See supra at note 1.
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on that reassessment, and after carefully
considering the issues raised in the
court’s order, CDC has determined that
the current public health situation does
not support the application of the
August Order to UC. Per the terms of 42
U.S.C. 265 itself, this lack of public
health justification means the
suspension of the right to introduce UC
is not an available measure. In addition,
the COVID–19 public health mitigation
measures already in place for UC
described herein reinforce CDC’s
determination that the August Order
and all related prior orders issued
pursuant to 42 U.S.C. 265, 268 and 42
CFR 71.40 should be terminated as to
UC.
Following the temporary exception of
UC from the October Order in January
2021, the United States experienced an
increase in the number of UC arriving
daily at the Southwest Border. In
response, HHS and ORR, in conjunction
with the Federal Emergency
Management Agency (FEMA) and with
the assistance of the Department of
Defense, greatly expanded the capacity
for intake and processing of UC. At its
height, ORR had capacity of over 30,000
beds 57 and nearly 23,000 children 58
were in its care. Currently, ORR has a
capacity of nearly 14,000 beds and
fewer than 10,000 children are in ORR
care as of March 9, 2022.59 ORR has
successfully processed and discharged
over 159,000 UC since January 2021.60
The successful efforts to expand
capacity for UC have resulted in
sufficient capacity at ORR sites—both
along the border and in the interior—
and significantly reduced the length of
time that UC remain in CBP custody. As
of March 11, 2022, the average time a
UC remained in CBP custody before
transferring to ORR custody was 23
hours, and no UC have been in CBP
custody for over 72 hours.61 This
represents a substantial improvement
from early 2021.62 While the number of
UC encountered may remain at elevated
levels, expanded ORR capacity and
improved processing methods have
resulted in UC remaining in CBP
custody for shorter periods of time.
With CDC’s assistance and guidance,
ORR also has implemented COVID–19
testing protocols for UC in its care and
57 Per
May 2021 monthly data from ORR.
April 2021 monthly data from ORR.
59 Per data from ORR.
60 Id. From January 2021 through February 2022,
15,492 UC have been discharged from ORR care.
61 As reported by ORR.
62 For comparison, on March 29, 2021, nearly
5,500 UC were in CBP custody, with 3,540 of those
UC in custody for longer than 72 hours; as of March
31, 2021, the average time in CBP custody for UC
was 131 hours.
58 Per
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continues to practice other mitigation
measures to prevent and curtail
transmission of the SARS–CoV–2 virus
among UC in its care. These strategies
include universal and proper wearing of
masks, physical distancing, frequent
hand washing, cleaning and
disinfection, improved ventilation, staff
vaccination, and cohorting UC
according to their COVID–19 test status.
Per a CDC recommendation, ORR
conducts serial testing of staff, as
feasible, to allow early detection of a
possible outbreak.63 ORR contract and
grantee staff working in facilities serving
UC are encouraged to receive the
COVID–19 vaccine.64 As advised by
CDC, ORR also restricts movement of
unvaccinated personnel between
facilities to reduce potential outbreaks
resulting from transfer of unvaccinated
staff between shelters. These measures
help reduce the spread of COVID–19
among UC prior to the UC being
discharged to vetted sponsors in U.S.
communities.
In addition to the mitigation measures
at ORR facilities described above, CDC
provided updated recommendations to
ORR regarding the vaccination of UC
ages 5 and older.65 ORR subsequently
approved the administration of COVID–
19 vaccine for age-eligible children.
Under ORR care, children ages 5 and
over are offered a COVID–19 vaccine as
soon as possible, as long as there are no
contraindications and vaccination does
not delay unification of UC with
sponsors. Of the total population of UC
in ORR care, approximately 98% are
age-eligible for vaccination and, as of
March 8, 2022, ORR has administered at
least one dose of the COVID–19 vaccine
to 62,644 UC and a second dose to
15,994, with a refusal rate under 1%.66
CDC considers these vaccination efforts
to be a critical risk reduction measure
that supports excepting UC from the
August Order.
63 In ORR facilities where the risk of transmission
is moderate to high, public health officials working
collaboratively with ORR facilities can determine
the appropriateness of offering screening and repeat
testing of randomly selected asymptomatic staff and
children at the facility, as feasible, to identify cases
and prevent secondary transmission.
64 Additional criteria (e.g., continued symptom
monitoring and correct and consistent wearing of
masks) should be met by ORR as outlined on CDC’s
website. See Science Brief: Options to Reduce
Quarantine for Contacts of Persons with SARS–
CoV–2 Infection Using Symptom Monitoring and
Diagnostic Testing, Centers for Disease Control and
Prevention, https://www.cdc.gov/coronavirus/2019ncov/more/scientific-brief-options-to-reducequarantine.html (last updated Dec. 2, 2020).
65 Field Guidance #17—COVID–19 Vaccination of
Unaccompanied Children (UC) in ORR Care,
Internal Document (CDC memo to ORR, revised
Nov. 8, 2021).
66 Per data reported by ORR.
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Although 20,682 UC total have tested
positive for COVID–19 while at ORR
shelters during the period of March 24,
2020 to March 3, 2022, 20,304 of those
UC testing positive have successfully
completed medical isolation, with few
requiring medical treatment. Similarly,
13,148 cumulative COVID–19 cases
have been reported from Emergency
Intake Sites (EIS) as of March 2, 2022;
however, only approximately 37 of the
UC in this EIS group have required
hospitalization.67
These numbers indicate that the risk
of overburdening the local healthcare
systems with UC presenting with severe
COVID–19 disease remains low. Based
on the robust network of ORR care
facilities and the testing and medical
care available therein, as well as
COVID–19 mitigation protocols that
include vaccination for personnel and
eligible UC, there is very low likelihood
that processing UC in accordance with
existing Title 8 immigration procedures
will result in undue strain on the U.S.
healthcare system or healthcare
resources. Moreover, UC released to a
vetted sponsor do not pose a significant
level of risk for COVID–19 spread into
the community because they are
released after having undergone testing,
quarantine or isolation, and vaccination
when possible. UC sponsors also are
provided with appropriate medical and
public health direction.
Based on the public health
reassessment set forth above, as well as
the successful COVID–19 mitigation
measures that were and continue to be
in place for UC, there is no public
health basis to resume the suspension of
introduction of UC. Resuming the
suspension of introduction of UC would
not significantly decrease the risk of the
introduction, transmission, or spread of
COVID–19 at POE or Border Patrol
stations. Nor does the introduction of
UC into the United States pose a serious
danger of the introduction of COVID–19
such that applying the August Order to
UC is required in the interest of the
public health.
III. Legal Considerations
A. Concerns Raised by the District Court
In enjoining CDC from enforcing the
exception for UC set forth in the July
Exception and August Order, the court
in Texas v. Biden found that the July
Exception and August Order likely were
arbitrary or capricious in violation of
the Administrative Procedure Act (APA)
for several reasons.68 CDC takes the
court’s concerns seriously and has
67 As
reported by ORR.
WL 658579, at *16–*18.
68 2022
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considered each of them in issuing this
Order. First, the court stated that ‘‘[t]he
record before the Court demonstrates
that nothing changed between the
October 2020 Order, the July 2021
[Order], and the August 2021 Order. The
COVID–19 virus (still) remains a
threat.’’ 69 Regardless of the public
health conditions leading up to the July
Exception and August Order, CDC’s
most recent reassessment of the status of
the COVID–19 pandemic and associated
public health risks makes clear that
circumstances have now changed
significantly. Case counts and
hospitalization rates are decreasing,
vaccination rates are increasing, and the
availability of testing and treatments
also are increasing. These changes and
continuing trends in the public health
conditions since the conclusion of
CDC’s previous reassessment support
the decision to terminate the Orders as
to UC immediately.
Additionally, the court found that the
July Exception and August Order did
not adequately explain why UC were
unlikely to spread COVID–19 to others
when they spend, on average, more than
a day 70 in congregate settings at DHS
facilities ‘‘where they can expose other
detainees, DHS personnel, and
American citizens and residents to
whatever viruses they are carrying.’’ 71
CDC has considered the court’s concern
and concluded that because of the
overall decrease in cases of COVID–19
throughout the country, including at the
Southwest Border, coupled with the
increase in vaccination rates, there is an
extremely low likelihood that intake
processing of UC in DHS facilities will
pose a serious danger to the public
health. Importantly, vaccines are now
widely available and vaccination rates
have increased among the American
public in general and the DHS
workforce in particular, as well as in the
countries of origin for the current
majority of UC.72 Additionally, CBP
continues to implement a variety of
mitigation efforts to prevent the spread
of COVID–19 in POE and U.S. Border
Patrol facilities, as detailed above.73
Next, the court found that ‘‘instead of
trying to prevent [UC] from spreading
the viruses they are potentially carrying
to the interior of the United States, the
Government chose to send [UC] away
69 Id.
at *16.
contrast, SA and FMU spend, on average, 2–
3 days in congregate settings at the border.
71 Id. at *16.
72 See COVID–19 Vaccinations in the United
States, Centers for Disease Control and Prevention,
https://covid.cdc.gov/covid-data-tracker/
#vaccinations_vacc-people-onedose-pop-5yr
(updated Mar. 11, 2022).
73 See supra note 43.
70 In
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from the facilities where the
Government could monitor them and
their health.’’ 74 CDC clarifies that
generally DHS is required by the
Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA) to
promptly transfer UC to ORR. Even after
such transfer, UC remain in U.S.
Government custody through ORR’s
network of providers where they are
subject to robust COVID–19-mitigation
protocols, including distancing, testing,
masking, quarantining, cleaning and
disinfection, improved ventilation, staff
vaccination, and available vaccination
for noncitizen children.75 These
mitigation measures allow ORR to
identify COVID–19 cases, and the vast
majority of UC who tested positive for
COVID–19 while at ORR shelters
successfully completed medical
isolation. Unlike other covered
noncitizens apprehended at the border,
UC in ORR custody undergo COVID–19
testing twice before being released to the
community. Accordingly, there very low
risk that UC are COVID–19 positive
when they are released into the
community. Moreover, under ORR care,
eligible children are offered a COVID–19
vaccine as soon as possible, as long as
there are no contraindications and
vaccination does not delay unification
of UC with vetted sponsors. When UC
are released to sponsors, ORR provides
their sponsors with appropriate medical
and public health direction, including
information on how to obtain additional
vaccination doses as needed as well as
quarantine and isolation guidance when
appropriate.
The court also found that the July
Exception and August Order did not
explain how ‘‘preventing the spread of
COVID–19 between’’ UC can also
‘‘prevent the spread of COVID–19 from
the interior of the United States.’’ 76 CDC
has considered the court’s concern and
determined that preventing the spread
of COVID–19 between UC does prevent
the spread of COVID–19 into the interior
because the fewer UC that test positive
for COVID–19, the lower the
transmission rates will be from any UC
who is COVID–19 positive into the
interior. In any event, as discussed
above, CDC has determined that, given
the testing of UC that occurs prior to
transfer to ORR, as well as the robust
mitigation measures implemented by
CBP since the August Order and in
place at ORR facilities, UC present very
little risk of spreading of COVID–19
74 Texas,
2022 WL 658579, at *16.
75 See supra II.B.
76 Id.
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when they are released to their
sponsors.
The court also noted a prior U.S.
Border Patrol Chief’s statement that CDC
adopted the exception for UC before it
issued the February 2021 Order pausing
application of the October Order to UC.
From this, the court concluded that
CDC’s July Exception and August Order
constituted a ‘‘departure from prior
policy.’’ Regardless of whether there
had been any defects in a prior
unannounced decision or in the
February 2021 Order that affected the
July Exception and August Order, CDC
is now providing a fuller explanation of
its decision to terminate the Orders with
respect to UC immediately given the
outcome of its most recent public-health
reassessment.
B. Absence of Reliance Interests
As noted above, in issuing its July
Exception, CDC considered the impact
of excepting UC from the October 2020
Order on the local healthcare systems in
light of, among other things, data
showing that the number of UC
presenting with severe COVID–19
disease remained low.77 The U.S.
District Court for the Northern District
of Texas has found, however, that
neither the July Exception nor the
August Order ‘‘indicate that the agency
considered all of Texas’s potential
reliance interests.’’ 78 In issuing this
Order, CDC has considered whether
state or local governments, or their
subdivisions, have any ‘‘legitimate
reliance’’ 79 interests on the inclusion of
UC in an Order under 42 U.S.C. 265. No
state or local government could have
any reliance interest relating to the
exclusion of UC arising from the August
2021 Order since it expressly excepted
UC.80 Because expulsions of UC under
42 U.S.C. 265 have not been occurring
since at least February 2021, no State
could rely on UC being covered by the
August Order, and CDC does not see a
need to provide advance notice that it
will continue excepting UC. We
therefore focus on the October 2020
Order and its predecessors. CDC finds it
useful to distinguish between potential
long-term and short-term reliance
interests.
On the issue of long-term reliance
interests, CDC has determined that no
state or local government could be said
to have legitimately relied on the
77 See
86 FR at 38,720.
v. Biden, No. 4:21–cv–0579–P, Doc. 100
78 Texas
at 31.
79 See Dep’t of Homeland Sec. v. Regents of the
Univ. of Cal., 140 S. Ct. 1891, 1913 (2020).
80 See 86 FR at 42838 (‘‘As outlined in the July
Exception and incorporated herein, CDC is fully
excepting UC from this Order.’’).
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October 2020 Order to implement a
long-term or permanent change to its
operations because the October 2020
Order was by its very nature a shortterm order subject to change at any time
in response to an evolving public health
crisis and is subject to regular review by
CDC. Section 265 may be invoked only
if there is a ‘‘serious danger of the
introduction of [a communicable]
disease into the United States, and [if]
this danger is so increased by the
introduction of persons or property from
such country that a suspension of the
right to introduce such persons and
property is required in the interest of
the public health.’’ 81 The statute may be
invoked only ‘‘for such period of time
as [CDC] may deem necessary’’ to avert
such a danger.82 Thus, both Section 265
and HHS’s implementing regulation
recognize that in prohibiting the
introduction of covered persons ‘‘in
whole or in part,’’ 83 a CDC Order is
effective ‘‘only for such period of time
that the Director deems necessary to
avert the serious danger of the
introduction of a quarantinable
communicable disease.’’ 84
Accordingly, CDC’s initial order
issued under 42 U.S.C. 265, 268 and 42
CFR 71.40 in March 2020 made clear
that the order represented a ‘‘temporary
suspension of the introduction of
[covered] persons into the United
States’’ 85 and that the order would
remain effective only for ‘‘30 days, or
until [CDC] determine[s] 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.’’ 86 The March
2020 Order was subsequently extended
on April 20, 2020 and amended on May
19, 2020. The fact that the policy was
frequently reviewed should have
underscored that the use of the Section
265 authority was a temporary measure
subject to change at any time. The
October 2020 Order again confirmed
this understanding of CDC’s authority
under 42 U.S.C. 265, 268 and 42 CFR
71.40, noting the ‘‘temporary’’ nature of
the suspension of the introduction of
covered persons, and the fact that the
Order would be reviewed every 30 days
based on ‘‘the latest information
regarding the status of the COVID–19
pandemic and associated public health
risks to ensure that the Order remains
necessary,’’ and that CDC ‘‘retain[ed] the
authority to extend, modify, or
81 42
U.S.C. 265.
82 Id.
83 Id.
84 42
CFR 71.40(a).
FR at 17061 (emphasis added).
86 85 FR at 17068.
85 85
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terminate the Order, or implementation
of [the] Order, at any time as needed to
protect public health.’’ 87
In addition, in November 2020, the
United States District Court for the
District of Columbia enjoined the
expulsion of UC on the ground that
Section 265 likely did not authorize
such expulsions.88 Although the
government appealed the injunction and
obtained a stay of the injunction in
January 2021,89 there remained legal
uncertainty over the government’s
authority to apply Section 265 to UC,
thus further rendering it unreasonable
for any state or local government to act
in long-term reliance on the continued
expulsion of UC under Section 265.
Moreover, as a factual matter, CDC is
not aware of, nor has any state or local
government brought to CDC’s attention,
any reasonable or legitimate reliance on
the continued expulsion of UC under 42
U.S.C. 265. For example, no state or
local government has indicated that it
altered its operations, spending, or
regulation in light of the prior
application of Section 265 to UC. The
total number of UC processed under
Title 8 remains relatively small,
rendering it unlikely that state or local
governments would adversely rely on
the application of Section 265 to UC by
making any material changes.
Additionally, CDC does not believe
that the presence of UC poses a public
health risk sufficient to justify
continued application of 42 U.S.C. 265
to UC. Because 42 U.S.C. 265 authorizes
the CDC to prevent the introduction of
noncitizens only when necessary to
address a public health risk, no state or
local government could rely on Section
265 continuing to be applied in the
absence of such a risk. Therefore, CDC’s
considered judgment is that no state or
local government currently has a longterm reliance interest in the continued
expulsion of UC under the October 2020
Order and that any long-term reliance
interests that might be said to exist in
connection with the continued
expulsion of UC under the October 2020
Order are outweighed by CDC’s
determination that there is no public
health justification to expel UC at this
time.90 To the extent that any state or
local government did rely on the
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87 85
FR at 65807, 65812.
P.J.E.S. v. Wolf, 502 F. Supp. 3d 492
(D.D.C. 2020).
89 Order, P.J.E.S. v. Mayorkas, et al., No. 20–5357
(D.C. Cir. Jan. 29, 2021), Doc. No. 1882899.
90 See Regents, 140 S. Ct. at 1913 (explaining that
features evidencing the temporary and non-rightsconferring nature of a government program ‘‘surely
are pertinent in considering the strength of any
reliance interests,’’ and can be considered by the
agency).
88 See
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expulsion of UC for purposes of
resource allocation despite the reasons
cautioning against such reliance, CDC
concludes that resource allocation
concerns do not outweigh CDC’s
determination that expulsion of UC is
not required to avert a serious danger to
public health.
CDC has also considered whether
there may be any short-term reliance on
the continued expulsion of UC under
the October 2020 Order.91 Because CDC
is unaware of any such reliance beyond
the potential allocation of resources
CDC already considered for local
healthcare systems, CDC does not
believe that any state or local
government could have reasonably
relied, even on a short-term basis, on the
continued expulsion of UC. As noted
above, any such reliance would not
have been reasonable given the statutory
requirement that 42 U.S.C. 265 be
invoked only if there is a ‘‘serious
danger of the introduction of [a
communicable] disease into the United
States, and that this danger is so
increased by the introduction of persons
or property from such country that a
suspension of the right to introduce
such persons and property is required in
the interest of the public health,’’ as
well as the statutory mandate that
Section 265 be utilized only ‘‘for such
period of time as [CDC] may deem
necessary’’ to avert such a danger. Any
reliance also would have been
particularly unwarranted because UC
were subject to expulsion under 42
U.S.C. 265 for only a very limited
time—from March 2020 to November
2020, and then briefly from January 29,
2021 to shortly before the February 11,
2021 notice. As such, the exclusion of
UC from 42 U.S.C. 265 expulsions has
been the status quo generally since
November 2020 and certainly since at
least February 2021. Thus, since the
start of this public health emergency,
the period of time during which UC
have been excepted from expulsion
under Section 265 is longer than the
period of time during which they were
subject to such expulsion. Even if an
entity had reasonably relied on the
inclusion of UC in an order under 42
U.S.C. 265 prior to February 2021, it
should have adjusted its position by
now. Therefore, CDC does not believe
that any potential short-term reliance
interests can reasonably outweigh CDC’s
91 See Regents, 140 S. Ct. at 1913 (rejecting the
government’s argument that the fact that the DACA
program provided benefits only in two-year
increments and was said not to confer any
substantive rights ‘‘automatically preclude[d]
reliance interests,’’ but noting that such disclaimers
‘‘are surely pertinent in considering the strength of
any reliance interests’’).
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15251
public health determination that there is
no public health justification for
expelling UC under 42 U.S.C. 265 at this
time.
Finally, Orders under 42 U.S.C. 265;
268 and 42 CFR 71.40 are not, and do
not purport to be, policy decisions about
controlling immigration; rather, as
explained, CDC’s exercise of its
authority under Section 265 depends on
the existence of a public health
emergency. Thus, to the extent that
border communities were relying on an
order under 42 U.S.C. 265 as a means
of controlling immigration, such
reliance would not be reasonable or
legitimate. Even if such reliance were
reasonable or legitimate, that reliance
would not outweigh CDC’s public
health assessment.
In conclusion, any such reliance
interests, whether short- or long-term,
do not outweigh CDC’s determination
that expulsion of UC is not necessary to
avert a serious danger to public health.
Because disruption of ordinary
processing of UC is a weighty action,
CDC does not believe it is appropriate
to resume expulsion when CDC has
concluded that such action is not
warranted under the terms of 42 U.S.C.
265.
C. Timing Considerations
As noted in the August Order, CDC
reassesses ‘‘[t]he circumstances
necessitating the Order . . . at least
every 60 days.’’ 92 Accordingly, CDC has
been in the process of evaluating the
status of the pandemic and the evolving
public health conditions since the
conclusion of its previous review on
January 29, 2022, to determine whether
the Order remains necessary in whole or
part to protect the public health. The
current 60-day review process is
scheduled to end on March 30, 2022,
and CDC will conclude its reassessment
of whether the Order remains necessary
in whole or part to protect the public
health with respect to SA and FMU by
that date.
CDC had previously excepted UC in
its July Exception, as reiterated and
incorporated in its August Order.93 On
March 4, 2022, the District Court for the
Northern District of Texas issued a
preliminary injunction ‘‘enjoining and
restraining’’ CDC from enforcing the
July Exception and August Order to the
extent that they ‘‘except unaccompanied
alien children from the Title 42
procedures based solely on their status
as unaccompanied alien children’’
because, the court found, CDC had not
92 Supra
note 1.
86 FR 38,717 (July 22, 2021); 86 FR at
42,837–38; see also 86 FR 9942 (Feb. 17, 2021).
93 See
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adequately explained its decision to
treat UC differently than other
noncitizens subject to the October
Order.94 The court stayed its
preliminary injunction for seven days.95
Because CDC has determined, after
considering current public health
conditions and recent developments,
that expulsion of UC is not warranted to
protect the public health, and in
recognition of the unique vulnerabilities
of UC, CDC is immediately terminating
the CDC Orders to the extent they apply
to UC. Because of their vulnerabilities,
UC are generally treated differently than
other individuals apprehended and
processed at the border under the
immigration laws. When Section 265
does not apply, UC generally are
transferred to the care and custody of
HHS’s ORR pursuant to the TVPRA.96
ORR is able to care for UC while
implementing appropriate COVID–19
mitigation measures, given ORR’s robust
network of care facilities that provide
testing and medical care, and DHS has
already been excepting UC in
accordance with CDC’s August Order.
Because CDC has in its expert judgment
determined again that, based on current
circumstances, the expulsion of UC
under Section 265 is not necessary to
protect the public health, there is no
justification for subjecting UC to the
potentially significant harms they could
suffer if the CDC Orders were to be
applied to them.97 For these reasons,
CDC is terminating the CDC Orders to
the extent they apply to UC.
authority extends only for such period
of time deemed necessary to avert the
serious danger of the introduction of a
quarantinable communicable disease
into the United States.100 Such an order
must also be predicated, in part, upon
a determination that the danger of such
introduction is so increased that a
suspension of the right to introduce
such persons into the United States is
required in the interest of public
health.101
CDC has considered these and other
relevant factors in the foregoing
reassessment with respect to UC,
including the overall shift in the U.S.
Government response to the pandemic,
and in the context of reviewing the
August Order with respect to UC, has
determined that less restrictive means
are available to avert the public health
risks associated with the introduction,
transmission, and spread of COVID–19
into the United States. Although
COVID–19 continues to spread within
the United States, the numerous tools
for disease prevention, mitigation, and
treatment which have been
implemented over the past two years
(including those specific to UC in the
custody of the federal government) are
sufficient at this point in time to protect
public health, such that an order
suspending the right to introduce UC
under 42 U.S.C. 265 is no longer
required in the interest of public health.
CDC is not addressing application of the
August Order to FMU and SA through
this termination.
D. Basis for Termination With Respect
to UC Under Sections 362 and 365 of
the PHS Act and 42 CFR 71.40
CDC is hereby immediately
terminating the August Order 98 and all
prior orders issued pursuant to sections
362 and 365 of the PHS Act (42 U.S.C.
265, 268) and the implementing
regulation at 42 CFR 71.40 to the extent
they apply to UC.99
CDC is committed to using the least
restrictive means necessary and
avoiding the imposition of unnecessary
burdens in exercising its communicable
disease authorities. This aligns with the
underlying legal authority in 42 U.S.C.
265, which makes clear that this
IV. Issuance and Implementation of
Termination
94 Texas v. Biden, No. 4:21–cv–579 (N.D. Tex.
Mar. 4. 2022).
95 Id.
96 See D.B. v. Cardall, 826 F.3d 721, 738 (4th Cir.
2016) (‘‘The intricate web of statutory provisions
relating to [UC] reflects Congress’s unmistakable
desire to protect that vulnerable group.’’).
97 See Huisha-Huisha v. Mayorkas,—F.4th—,
2022 WL 628061, *12 (D.C. Cir. Mar. 4, 2022)
(noting that some migrants who are expelled could
be subject to persecution and victimization).
98 See supra notes 1 and 4.
99 See supra note 7.
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A. Termination as to UC
Based on the foregoing public health
reassessment, I hereby Terminate
immediately with respect to UC the
August Order and all previous orders
issued pursuant to Sections 362 and 365
of the PHS Act (42 U.S.C. 265, 268) and
their implementing regulation at 42 CFR
71.40.102
Immediate termination of the August
Order with respect to UC is based on the
current status of the COVID–19
pandemic and the public health
mitigation measures available for UC
and the public. In making this
determination, I have considered
myriad facts, including epidemiological
information regarding COVID–19, the
emergence of SARS–CoV–2 variants, the
100 42
U.S.C. 265; 42 CFR 71.40.
CFR 71.40.
102 Control of Communicable Diseases; Foreign
Quarantine: Suspension of the Right to Introduce
and Prohibition of Introduction of Persons into
United States from Designated Foreign Countries or
Places for Public Health Purposes, 85 FR 56424
(Sept. 11, 2020); 42 CFR 71.40.
101 42
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morbidity and mortality associated with
the disease for individuals in certain
risk categories, COVID–19 Community
Levels, national levels of transmission
and immunity, the availability and
efficacy of vaccination and treatments,
as well as care available to UC and
public health concerns with congregate
settings at border facilities. While
holding UC in congregate settings with
limited options for COVID–19
mitigation is accompanied by some
inherent risk, the overall public health
landscape in the United States has
changed such that the justification for
the August Order is no longer sustained
with respect to UC particularly in light
of the mitigation measures as applied to
UC.
As noted previously, CDC is not
addressing application of the August
Order to FMU and SA through this
termination. DHS will continue to
exercise its discretion to issue
exceptions pursuant to a DHS-approved
process or on a case-by-case basis, based
on the totality of the circumstances as
set forth in the August Order to FMU
and SA, as appropriate.
B. APA Review
This Termination shall be
immediately effective with respect to
UC. I consulted with DHS and other
federal departments as needed before I
issued this Order and requested that
DHS aid in the implementation of this
Termination and continued aspects of
the Order because CDC does not have
the capability, resources, or personnel
needed to do so.103
This Termination, like the preceding
Orders issued under this authority, is
not a rule subject to notice and
comment under the APA. Even if it
were, 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
Termination; it would be impracticable
and contrary to public health practices,
the public interest, and immigration
laws that apply in the absence of an
order under 42 U.S.C. 265 to delay the
issuing and effective date of this
Termination.104 In addition, this Order
concerns ongoing discussions with
Canada, Mexico, and other countries
regarding how best to control COVID–19
transmission over shared borders and
therefore directly ‘‘involve[s] . . . a . . .
foreign affairs function of the United
States.’’ 105 Thus, for both of the
foregoing reasons, notice and comment
103 42
U.S.C. 268; 42 CFR 71.40(d).
U.S.C. 553(a)(1).
105 5 U.S.C. 553(a)(1).
104 5
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and a delay in effective date are not
required.
With this Termination, I hereby
determine that the danger of further
introduction, transmission, or spread of
COVID–19 into the United States from
UC, as defined in the August Order, has
ceased to be a serious danger to the
public health and therefore the
continuation of the August Order, and
all previous orders issued under the
same authority, with respect to UC is no
longer necessary to protect public
health. Nothing in this Termination will
prevent me from issuing a new Order
under 42 U.S.C. 265, 268 and 42 CFR
71.40 based on new findings, as dictated
by public health needs.
Sherri Berger,
Chief of Staff, Centers for Disease Control
and Prevention.
Description: The information
collected through the forms approved
under the Generic Clearance for Disaster
Information Collection Forms is used to
provide real-time updates during the
response and recovery phases of a
disaster. The same generic form has
been tailored for each of the five
following ACF offices or programs: the
Children’s Bureau, the Family Violence
Prevention and Services Program, the
Office of Child Care, the Office of Head
Start, and the Runaway and Homeless
Youth (RHY) Program. It is possible that
more program offices may request
approval of a tailored version in the
future.
The requested information is
submitted by ACF grantees, which
includes states and tribes.
[FR Doc. 2022–05687 Filed 3–15–22; 11:15 am]
Currently Approved Forms
BILLING CODE 4163–18–P
Family and Youth Services Bureau,
Family Violence Prevention and
Services Program. This form collects
information on post-disaster impacts
and disaster recovery, including
requests for assistance from state
administrators, tribes/tribal
organizations, state coalitions, or
resource centers comprising the
Domestic Violence Resource Network;
shelters that have been evacuated due to
damage; shelter residents being served
in alternate locations; reports of an
increase in requests for assistance;
capacity shortfalls; and reported
increase in domestic violence postdisaster.
Office of Child Care. The baseline
information includes the number of
licensed, regulated, and license-exempt
child care providers in the state; the
number of children who are served by
the ACF Office of Child Care’s Child
Care and Development Fund (CCDF);
emergency contact information for the
CCDF administrator, the licensing
contacts, and resource and referral
agencies; interruptions in systems that
facilitate contacting the child care
providers; contact person for state
record-keeping systems; number of
children served; and damage assessment
plans of the licensing agency. The
disaster impact information includes the
number and type of child care providers
closed, the number of closed providers
that serve children who benefit from
ACF CCDF, the number of children with
CCDF subsidies affected by the closures,
total child care capacity lost, whether
the providers whose facilities have
closed will be able to reopen, whether
damaged facilities have been able to
remain open, degree of disruption in
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Administration for Children and
Families
[OMB No. 0970–0476]
Proposed Information Collection
Activity; Generic Clearance for
Disaster Information Collection Forms
Office of Human Services
Emergency Preparedness and Response,
Administration for Children and
Families, HHS.
ACTION: Request for public comment.
AGENCY:
The Administration for
Children and Families (ACF) is
requesting a 3-year extension of the
Generic Clearance for Disaster
Information Collection Forms (OMB
#0970–0476) and the five forms
currently approved for ACF programs.
There are no changes requested to the
umbrella generic and no substantial
changes to the currently approved
forms.
SUMMARY:
Comments due within 60 days of
publication. In compliance with the
requirements of the Paperwork
Reduction Act of 1995, ACF is soliciting
public comment on the specific aspects
of the information collection described
above.
ADDRESSES: You can obtain copies of the
proposed collection of information and
submit comments by emailing
infocollection@acf.hhs.gov. Identify all
requests by the title of the information
collection.
DATES:
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SUPPLEMENTARY INFORMATION:
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15253
services; state decision to implement
temporary operating standards for child
care providers; and requests for
behavioral and mental health services
for children, families, and staff. Postdisaster recovery questions include
ability of child care providers to reopen,
number of service slots lost due to
closures, total number of child care
providers that are open in the disaster
impact zone; and staff shortages.
Family and Youth Services Bureau,
Runaway and Homeless Youth Program.
This form collects information on postdisaster impacts and disaster recovery,
including requests from grantees for
technical assistance; a safety and
accountability report for children and
youth in RHY programs; reports of
damage to RHY facilities; and a report
of any children or youth that have been
relocated due to damages to facilities.
Children’s Bureau. This form requests
information on any disaster-caused
disruptions of the child abuse/neglect
reporting and investigation system;
reports of unaccompanied children
needing protection, identification, and
reunification with legal caregivers;
actions taken by the Child Welfare
Agency; impacts to Chafee Foster Care
Independence Program providers;
accountability and safety report for
youth receiving services; reports on any
increase in the number of child abuse or
neglect reports in the affected areas;
impacts to Safe and Stable Families or
Community Based Child Abuse
Prevention providers; whether families
receiving in-home services are being
supported; displaced or temporarily
relocated foster families; coordination of
needed services and supervision by the
Child Welfare Agency; new or increased
interstate challenges; and compromised
program records.
Office of Head Start. Number of Head
Start (HS) centers and service slots
located in the disaster impact zone;
number of centers and available service
slots open and number closed postdisaster; number of HS centers with
undetermined status; general access to
services for children and families in the
impacted areas; disruptions in
transportation; ability of families to
receive care elsewhere; number of HS
centers closed post-disaster and number
of service slots lost; and other program
service interruptions.
Respondents: ACF Grantees and State
Administrators.
E:\FR\FM\17MRN1.SGM
17MRN1
]]>Agencies
[Federal Register Volume 87, Number 52 (Thursday, March 17, 2022)]
[Notices]
[Pages 15243-15253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05687]
[[Page 15243]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Disease Control and Prevention
Public Health Reassessment and Immediate Termination of Order
Suspending the Right To Introduce Certain Persons From Countries Where
a Quarantinable Communicable Disease Exists With Respect to
Unaccompanied Noncitizen Children
AGENCY: Centers for Disease Control and Prevention (CDC), Department of
Health and Human Services (HHS).
ACTION: General notice.
-----------------------------------------------------------------------
SUMMARY: The Centers for Disease Control and Prevention (CDC), located
within the Department of Health and Human Services (HHS), is hereby
terminating the Order Suspending the Right to Introduce Certain Persons
from Countries Where a Quarantinable Communicable Disease Exists,
issued on August 2, 2021 (August Order), and all related prior orders
issued pursuant to the authorities in sections 362 and 365 of the
Public Health Service (PHS) Act and the implementing regulation, to the
extent they apply to Unaccompanied Noncitizen Children (UC).
DATES: This Order was implemented March 11, 2022.
FOR FURTHER INFORMATION CONTACT: Jennifer Buigut, Division of Global
Migration and Quarantine, National Center for Emerging and Zoonotic
Infectious Diseases, Centers for Disease Control and Prevention, 1600
Clifton Road NE, MS H16-4, Atlanta, GA 30329. Email:
[email protected].
SUPPLEMENTARY INFORMATION:
Background
Coronavirus disease 2019 (COVID-19) is a quarantinable communicable
disease caused by the SARS-CoV-2 virus. As part of U.S. government
efforts to mitigate the introduction, transmission, and spread of
COVID-19, CDC issued the August Order, replacing a prior order issued
on October 13, 2020 (October Order) which continued a series of orders
issued pursuant to 42 U.S.C. 265, 268 and the implementing regulation
at 42 CFR 71.40, suspending the right to introduce certain persons into
the United States from countries or places where the quarantinable
communicable disease exists in order to protect the public health from
an increased risk of the introduction of COVID-19 (CDC Orders).
The CDC Orders issued under 42 U.S.C. 265, 268 and 42 CFR 71.40
were intended to reduce the risk of COVID-19 introduction,
transmission, and spread at POE and U.S. Border Patrol stations by
significantly reducing the number and density of covered noncitizens
held in these congregate settings and thereby reducing risks to U.S.
citizens and residents, Department of Homeland Security/Customs and
Border Patrol personnel and noncitizens at the facilities, and local
community healthcare systems. CDC has deemed the measures included in
the CDC Orders necessary for the protection of public health during the
ongoing COVID-19 pandemic.
The August Order continued a suspension of the right to introduce
``covered noncitizens,'' as defined below, into the United States along
the U.S. land and adjacent coastal borders. The August Order
specifically excepted UC and incorporated an exception for UC issued by
CDC on July 16, 2021 (July Exception). Based on the public health
landscape, the current status of the COVID-19 pandemic, the situation
in congregate settings where UC seeking to enter the United States are
processed and held, and the procedures in place for the processing of
UC in such congregate settings, CDC has determined that a suspension of
the right to introduce UC is not necessary to protect U.S. citizens,
U.S. nationals, lawful permanent residents, personnel and noncitizens
at the (POE) and U.S. Border Patrol stations, and destination
communities in the United States at this time. This termination as to
UC supersedes the July Exception incorporated in the August Order. The
present termination does not address the application of the August
Order to individuals in family units (FMU) or single adults (SA).
The August Order applied specifically to covered noncitizens,
defined as ``persons traveling from Canada or Mexico (regardless of
their country of origin) who would otherwise be introduced into a
congregate setting in a POE or U.S. Border Patrol station at or near
the U.S. land and adjacent coastal borders subject to certain
exceptions detailed below; this includes noncitizens who do not have
proper travel documents, noncitizens whose entry is otherwise contrary
to law, and noncitizens who are apprehended at or near the border
seeking to unlawfully enter the United States between POE.'' Three
groups typically make up covered noncitizens--single adults (SA),
individuals in family units (FMU), and unaccompanied noncitizen
children (UC). UC encountered in the United States were specifically
excepted from the August Order based on its explicit incorporation by
reference of CDC's July Exception of UC.
UC are generally treated differently than other individuals
apprehended at the border under ordinary immigration laws. When section
265 does not apply, UC generally are transferred to the care and
custody of HHS's Office of Refugee Resettlement (ORR) pursuant to the
Trafficking Victims Protection Reauthorization Act of 2008. ORR is able
to care for UC while implementing appropriate COVID-19 mitigation
measures, given ORR's robust network of care facilities that provide
testing and medical care, and DHS has already been excepting UC in
accordance with CDC's August Order. With CDC's assistance and guidance,
ORR also has implemented COVID-19 testing protocols for UC in its care
and continues to practice other mitigation measures to prevent and
curtail transmission of the SARS-CoV-2 virus among UC in its care.
In the August Order, CDC committed to reassessing the public health
circumstances necessitating the Order at least every 60 days by
reviewing the latest information regarding the status of the COVID-19
public health emergency and associated public health risks, including
migration patterns, sanitation concerns, and any improvement or
deterioration of conditions at the U.S. borders. Following a
Preliminary Injunction issued by the U.S. District Court for the
Northern District of Texas ordering that the July Exception for UC and
its incorporation into the August Order be enjoined, CDC determined
that it was necessary to conduct an immediate reassessment with respect
to UC. This reassessment takes into account the current status of the
pandemic.
Based on the reassessment, the CDC Director finds that there is no
longer a serious danger of the introduction, transmission, and spread
of COVID-19 into the United States as a result of entry of UC and that
a suspension of the introduction of UC is not required in the interest
of public health. The CDC Director has determined that suspension of
entry of UC is not necessary to protect U.S. citizens, U.S. nationals,
lawful permanent residents, personnel and noncitizens at POE and U.S.
Border Patrol stations, or destination communities in the United
States. In light of that determination, CDC is hereby terminating the
CDC Orders issued pursuant to 42 U.S.C. 265, 268 and 42 CFR 71.40 as
they apply to UC, effective immediately. The current 60-day review
process is scheduled to end on March 30, 2022, and CDC will conclude
its reassessment of whether
[[Page 15244]]
the Order remains necessary in whole or part to protect the public
health with respect to SA and FMU by that date.
Legal Authority
CDC is hereby immediately terminating the August Order and all
prior orders issued pursuant to sections 362 and 365 of the PHS Act (42
U.S.C. 265, 268) and the implementing regulation at 42 CFR 71.40 to the
extent they apply to UC.
Referenced Order
A copy of the Order is provided below, and a copy of the signed
Order can be found at https://www.cdc.gov/coronavirus/2019-ncov/more/pdf/NoticeUnaccompaniedChildren-update.pdf.
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) and 42 CFR 71.40
Public Health Reassessment and Immediate Termination of Order
Suspending the Right To Introduce Certain Persons From Countries Where
a Quarantinable Communicable Disease Exists With Respect to
Unaccompanied Noncitizen Children
Executive Summary
The Centers for Disease Control and Prevention (CDC), a component
of the U.S. Department of Health and Human Services (HHS), is hereby
terminating the Order Suspending the Right to Introduce Certain Persons
from Countries Where a Quarantinable Communicable Disease Exists,
issued on August 2, 2021 (August Order),\1\ and all related prior
orders issued pursuant to the authorities in sections 362 and 365 of
the Public Health Service (PHS) Act (42 U.S.C. 265, 268) and the
implementing regulation at 42 CFR 71.40 (CDC Orders),\2\ to the extent
that they apply to Unaccompanied Noncitizen Children (UC). The August
Order continued a suspension of the right to introduce ``covered
noncitizens,'' as defined in the Order,\3\ into the United States along
the U.S. land and adjacent coastal borders. The August Order
specifically excepted UC and incorporated an exception for UC issued by
CDC on July 16, 2021 (July Exception).\4\ The August Order states that
CDC will reassess at least every 60 days whether the Order remains
necessary to protect the public health. CDC was in the process of
assessing that question in light of the current public health
situation. However, in response to an order of the U.S. District Court
for the Northern District of Texas preliminarily enjoining the July
Exception and the relevant portion of the August Order based on
concerns about the adequacy of the CDC's explanation for those actions
and consistent with CDC's continuing review, CDC has reopened this
issue and reconsidered whether UC should be subject to the CDC Orders.
CDC hereby concludes that UC should not be subject to the CDC Orders
based on the current public health circumstances. Based on the public
health landscape, the current status of the COVID-19 pandemic, the
situation in congregate settings where UC seeking to enter the United
States are processed and held, and the procedures in place for the
processing of UC in such congregate settings, CDC has determined that a
suspension of the right to introduce UC is not necessary to protect
U.S. citizens, U.S. nationals, lawful permanent residents, personnel
and noncitizens at the ports of entry (POE) and U.S. Border Patrol
stations, and destination communities in the United States at this
time. This termination as to UC supersedes the July Exception
incorporated in the August Order. The present termination does not
address the application of the August Order to individuals in family
units (FMU) or single adults (SA).
---------------------------------------------------------------------------
\1\ Available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/CDC-Order-Suspending-Right-to-Introduce-_Final_8-2-21.pdf
(last visited Mar. 7, 2022); see also 86 FR 42828 (Aug. 5, 2021).
\2\ The ``CDC Orders'' issued pursuant to these legal
authorities are found at 85 FR 17060 (Mar. 26, 2020), 85 FR 22424
(Apr. 22, 2020), 85 FR 31503 (May 26, 2020), 85 FR 65806 (Oct. 16,
2020), and 86 FR 42828 (Aug. 5, 2021) (fully incorporating by
reference 86 FR 38717 (July 22, 2021), see 86 FR 42828, 42829 at
note 3).
\3\ See infra 1.
\4\ Public Health Determination Regarding an Exception for
Unaccompanied Noncitizen Children from Order Suspending the Right to
Introduce Certain Persons from Countries Where a Quarantinable
Communicable Disease Exists, Centers for Disease Control and
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/more/pdf/NoticeUnaccompaniedChildren.pdf (July 16, 2021); 86 FR 38717 (July
22, 2021); see 86 FR 42828, 42829 at note 1 (Aug. 5, 2021) (which
fully incorporated by reference the July Exception relating to UC).
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Outline of Reassessment and Order
I. Background
A. Public Health Landscape
B. Current Status of the COVID-19 Pandemic
1. Community COVID-19 Levels
2. Information Specific to UC
II. Public Health Reassessment
A. Changing Public Health Conditions
B. Public Health Factors Specifically Relevant to UC Population
III. Legal Considerations
A. Concerns Raised by the District Court
B. Absence of Reliance Interests
C. Timing Considerations
D. Basis for Termination With Respect to UC Under Sections 362
and 365 of the PHS Act and 42 CFR 71.40
IV. Issuance and Implementation of the Termination
A. Termination as to UC
B. APA Review
I. Background
Coronavirus disease 2019 (COVID-19) is a quarantinable communicable
disease \5\ caused by the SARS-CoV-2 virus. As part of U.S. Government
efforts to mitigate the introduction, transmission, and spread of
COVID-19, CDC issued the August Order,\6\ replacing a prior order
issued on October 13, 2020 (October Order) which continued a series of
orders issued pursuant to 42 U.S.C. 265, 268 and the implementing
regulation at 42 CFR 71.40,\7\ suspending the right to introduce \8\
certain persons into the United States from countries or places where
the quarantinable communicable disease exists in order to protect the
public health from an increased risk of the introduction of COVID-19
(CDC
[[Page 15245]]
Orders).\9\ The August Order applied specifically to covered
noncitizens, defined as ``persons traveling from Canada or Mexico
(regardless of their country of origin) who would otherwise be
introduced into a congregate setting in a POE or U.S. Border Patrol
station \10\ at or near the U.S. land and adjacent coastal borders
subject to certain exceptions detailed below; this includes noncitizens
who do not have proper travel documents, noncitizens whose entry is
otherwise contrary to law, and noncitizens who are apprehended at or
near the border seeking to unlawfully enter the United States between
POE.'' \11\
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\5\ Quarantinable communicable diseases are any of the
communicable diseases listed in Executive Order 13295, as provided
under section 361 of the Public Health Service Act (42 U.S.C. 264),
42 CFR 71.1. The list of quarantinable communicable diseases
currently includes cholera, diphtheria, infectious tuberculosis,
plague, smallpox, yellow fever, viral hemorrhagic fevers (Lassa,
Marburg, Ebola, Crimean-Congo, South American, and others not yet
isolated or named), severe acute respiratory syndromes (including
Middle East Respiratory Syndrome and COVID-19), influenza caused by
novel or reemergent influenza viruses that are causing, or have the
potential to cause, a pandemic, and measles. See Exec. Order 13295,
68 FR 17255 (Apr. 4, 2003), as amended by Exec. Order 13375, 70 FR
17299 (Apr. 1, 2005) and Exec. Order 13674, 79 FR 45671 (July 31,
2014), 86 FR 52591 (Sep. 22, 2021).
\6\ See supra note 1.
\7\ Order Suspending the Right to Introduce Certain Persons from
Countries Where a Quarantinable Communicable Disease Exists, 85 FR
65806 (Oct. 16, 2020). The October Order replaced the Order
Suspending Introduction of Certain Persons from Countries Where a
Communicable Disease Exists, issued on March 20, 2020 (March Order),
which was subsequently extended and amended. 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, 85 FR 17060 (Mar. 26, 2020); 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, 85 FR 22424 (Apr. 22, 2020); 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, 85 FR 31503 (May
26, 2020).
\8\ Suspension of the right to introduce means to cause the
temporary cessation of the effect of any law, rule, decree, or order
pursuant to which a person might otherwise have the right to be
introduced or seek introduction into the United States. 42 CFR
71.40(b)(5).
\9\ See supra note 2.
\10\ POE and U.S. Border Patrol stations are operated by U.S.
Customs and Border Protection (CBP), an agency within Department of
Homeland Security (DHS).
\11\ 86 FR 42828, 42841.
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Three groups typically make up covered noncitizens--single adults
(SA),\12\ individuals in family units (FMU),\13\ and unaccompanied
noncitizen children (UC).\14\ UC encountered in the United States were
specifically excepted from the August Order \15\ based on its explicit
incorporation by reference of CDC's July Exception of UC.\16\ The
August Order and July Exception distinguished the immigration
processing available to SA and FMU from that available to UC.\17\ While
all three groups are processed by U.S. Customs and Border Protection
(CBP), a component of the Department of Homeland Security (DHS),
following that initial intake, UC are referred to HHS' Office of
Refugee Resettlement (ORR) for care. At both the CBP and ORR stages, UC
receive special attention.
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\12\ A single adult (SA) is any noncitizen adult 18 years or
older who is not an individual in a ``family unit.'' 86 FR 42828,
42830 at note 13.
\13\ An individual in a family unit (FMU) includes any
individual in a group of two or more noncitizens consisting of a
minor or minors accompanied by their adult parent(s) or legal
guardian(s). Id. at note 14.
\14\ CDC understands UC to be a class of individuals similar to
or the same as those individuals who would be considered
``unaccompanied alien children'' (see 6 U.S.C. 279) for purposes of
HHS Office of Refugee Resettlement custody, were DHS to make the
necessary immigration determinations under Title 8 of the U.S. Code.
86 FR 38717, 38718 at note 4.
\15\ 86 FR 42828, 42829 at note 3.
\16\ See supra note 4.
\17\ See 86 FR 42828, 42835-37 (describing the processing of
noncitizen SA and FMU by DHS components, CBP and ICE, under both
regular Title 8 immigration and under an order pursuant to 42 U.S.C.
265).
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The series of CDC Orders issued under 42 U.S.C. 265, 268 and 42 CFR
71.40 were intended to reduce the risk of COVID-19 introduction,
transmission, and spread at POE and U.S. Border Patrol stations by
significantly reducing the number and density of covered noncitizens
held in these congregate settings and thereby reducing risks to U.S.
citizens, U.S. nationals, lawful permanent residents, DHS/CBP personnel
and noncitizens at the facilities, and local community healthcare
systems. CDC has deemed the measures included in the CDC Orders
necessary for the protection of public health during the ongoing COVID-
19 pandemic.
In the August Order, CDC committed to reassessing the public health
circumstances necessitating the Order at least every 60 days by
reviewing the latest information regarding the status of the COVID-19
public health emergency and associated public health risks, including
migration patterns, sanitation concerns, and any improvement or
deterioration of conditions at the U.S. borders.\18\ Following a
Preliminary Injunction issued by the U.S. District Court for the
Northern District of Texas ordering that the July Exception for UC and
its incorporation into the August Order be enjoined,\19\ CDC determined
that it was necessary to conduct an immediate reassessment with respect
to UC. This reassessment takes into account the current status of the
pandemic. For example, CDC recently released its COVID-19 Community
Levels framework, which allows communities and individuals to make
decisions and reduce COVID-19 mitigation measures as allowed by local
context and unique needs.\20\ This was followed by an updated National
COVID-19 Preparedness Plan, which lays out the roadmap to help the
nation continue to fight COVID-19 in the future, while also allowing
resumption of more normal routines.\21\
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\18\ 86 FR 42828, 42841.
\19\ See infra II.B.
\20\ COVID-19 Community Levels, Centers for Disease Control and
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/science/community-levels.html (updated Mar. 10, 2022).
\21\ National COVID-19 Preparedness Plan--March 2022, available
at https://www.whitehouse.gov/wp-content/uploads/2022/03/NAT-COVID-19-PREPAREDNESS-PLAN.pdf (last visited Mar. 9, 2022).
---------------------------------------------------------------------------
Based on the reassessment below, the CDC Director finds that there
is no longer a serious danger of the introduction, transmission, and
spread of COVID-19 into the United States as a result of entry of UC
and that a suspension of the introduction of UC is not required in the
interest of public health. The CDC Director has determined that
suspension of entry of UC is not necessary to protect U.S. citizens,
U.S. nationals, lawful permanent residents, personnel and noncitizens
at POE and U.S. Border Patrol stations, or destination communities in
the United States. In light of that determination, and as described
below, CDC is hereby terminating the CDC Orders issued pursuant to 42
U.S.C. 265, 268 and 42 CFR 71.40 as they apply to UC, effective
immediately.
A. Public Health Landscape
Since late 2019, SARS-CoV-2, the virus that causes COVID-19, has
spread throughout the world, resulting in a pandemic. Since the
beginning of the pandemic, the U.S. Government response has focused on
taking actions and providing guidance based on the best available
scientific information. As the waves of the pandemic have surged and
ebbed, so too have actions taken in response to the pandemic. Earlier
phases of the pandemic required extraordinary actions by the U.S.
Government and society at large. However, epidemiologic data,
scientific knowledge, and the availability of public health mitigation
measures, vaccines, and therapeutics have permitted many of those early
actions to be pulled back in favor of more nuanced, targeted, and
narrowly-tailored guidance that provides a less restrictive means to
prevent and control the SARS-CoV-2 virus and COVID-19.
As of March 11, 2022, there have been over 450 million confirmed
cases of COVID-19 globally, resulting in over six million deaths.\22\
The United States has reported over 79 million cases resulting in over
960,000 deaths due to the disease \23\ and is currently averaging
around 49,000 new cases of COVID-19 a day as of March 11, 2022.\24\
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\22\ Coronavirus disease (COVID-19) pandemic, World Health
Organization, https://covid19.who.int/ (last visited Mar. 11, 2022).
\23\ COVID Data Tracker, Centers for Disease Control and
Prevention, https://covid.cdc.gov/covid-data-tracker/#datatracker-home (last visited Mar. 11, 2022).
\24\ United States COVID-19 Cases, Deaths, and Laboratory
Testing (NAATs) by State, Territory, and Jurisdiction, Centers for
Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#cases_community (last visited Mar. 11, 2022).
---------------------------------------------------------------------------
B. Current Status of the COVID-19 Pandemic
The highly infectious SARS-CoV-2 variant B.1.1.529 (Omicron) is
responsible for the currently receding wave of the pandemic. The
Omicron variant resulted in an extraordinary and unparalleled increase
in COVID-19 cases around the world.\25\ The United
[[Page 15246]]
States recorded its highest seven-day moving average number of cases on
January 15, 2022.\26\ Following this unprecedented peak, the number of
COVID-19 cases in the United States began to rapidly decrease, falling
by 95% as of March 9, 2022.\27\ After a brief period of continued
increases,\28\ deaths and hospitalizations also reversed course and
began a swift descent.\29\ These welcomed changes were due, in part, to
widespread population immunity \30\ and a generally lower overall risk
of severe disease and are responsible for allowing the United States to
return to more normal routines safely.\31\
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\25\ Omicron was first reported to the World Health Organization
(WHO) by South Africa on November 24, 2021, and on November 26,
2021, WHO designated it a Variant of Concern (VOC). On November 30,
2021, the U.S. also decided to classify Omicron as a VOC. This
decision was based on a number of factors, including detection of
cases attributed to Omicron in multiple countries, even among
persons without travel history, transmission and replacement of
Delta as the predominant variant in South Africa, changes in the
spike protein of the virus, and concerns about potential decreased
effectiveness of vaccination and treatments.
\26\ See Trends in Number of COVID-19 Cases and Deaths in the
U.S. Reported to CDC, by State/Territory, Centers for Disease
Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#trends_dailycases, citing a seven-day moving average of 809,202
cases on January 15, 2022 (last updated Mar. 9, 2022).
\27\ Id. (noting a peak of 809,204 seven-day moving average
number of cases to 40,433 seven-day moving average number of cases
on March 7, 2022).
\28\ COVID Data Tracker Weekly Review: Stay Up to Date--
Interpretive Summary for Jan. 28, 2022, Centers for Disease Control
and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/01282022.html (Jan. 28, 2022).
\29\ See New Admissions of Patients with Confirmed COVID-19,
United States, Centers for Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions (last
updated Mar. 10, 2022); see also supra note 25.
\30\ In addition to vaccine-induced immunity, studies have
consistently shown that infection with SARS-CoV-2 lowers an
individual's risk of subsequent infection and an even lower risk of
hospitalization and death. National estimates of both vaccine- and
infection-induced antibody seroprevalence have been measured among
blood donors; as of December 2021 these measures demonstrated 94.7%
of persons 16 years and older showed antibody seroprevalence for
COVID-19. Science Brief: Indicators for Monitoring COVID-19
Community Levels and Making Public Health Recommendations, Centers
for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/indicators-monitoring-community-levels.html (updated Mar. 4, 2022); Nationwide COVID-19 Infection-
and Vaccination-Induced Antibody Seroprevalence (Blood donations),
Centers for Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#nationwide-blood-donor-seroprevalence (last
updated Feb. 18, 2022).
\31\ Transcript for CDC Media Telebriefing: Update on COVID-19,
Centers for Disease Control and Prevention, https://www.cdc.gov/media/releases/2022/t0225-covid-19-update.html (Feb. 25, 2022).
COVID-19 vaccines are highly effective against severe illness and
death. Widespread uptake of these vaccines, coupled with higher
rates of infection-induced immunity at the population level, as well
as the broad availability of mitigation measures and effective
therapeutics have moved the pandemic to a different phase. See also
State of the Union Address, https://www.whitehouse.gov/state-of-the-union-2022/_ (Mar. 1, 2022).
---------------------------------------------------------------------------
1. Community COVID-19 Levels
During the first four waves of the pandemic, CDC relied on a
particular formula to calculate community transmission levels and
update COVID-19 prevention strategies accordingly.\32\ These indicators
reflected the goal of limiting transmission in anticipation of vaccines
becoming available.\33\ The CDC Director examined these indicators in
conducting the public health assessment for the August Order.\34\
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\32\ In September 2020, CDC released the Indicators of Community
Transmission framework, which incorporated two metrics to define
community transmission: Total new cases per 100,000 persons in the
past seven days, and percentage of Nucleic Acid Amplification Test
results that are positive during the past seven days. CDC also
encouraged local decision-makers to also assess the following
factors, in addition to levels of SARS-CoV-2, to inform the need for
layered prevention strategies across a range of settings: Health
system capacity, vaccination coverage, capacity for early detection
of increases in COVID-19 cases, and populations at risk for severe
outcomes from COVID-19. See Christie A, Brooks JT, Hicks LA, et al.
Guidance for Implementing COVID-19 Prevention Strategies in the
Context of Varying Community Transmission Levels and Vaccination
Coverage. MMWR Morb Mortal Wkly Rep. ePub: 27 July 2021. DOI: https://dx.doi.org/10.15585/mmwr.mm7030e2.
\33\ Id.
\34\ Supra note 1.
---------------------------------------------------------------------------
In February 2022, given increased levels of population immunity,
available therapies, and overall milder disease associated with the
Omicron variant,\35\ CDC released a new framework, ``COVID-19 Community
Levels,'' reflecting a shift in focus from eliminating SARS-CoV-2
transmission toward disease control and infrastructure protection.\36\
This new framework examines three currently relevant metrics: New
COVID-19 hospital admissions per 100,000 population in the past seven
days, the percent of staffed inpatient beds occupied by patients with
COVID-19, and total new COVID-19 cases per 100,000 population in the
past seven days.\37\ CDC determined that data on disease severity and
healthcare system strain complement case rates, and these data together
are more informative for public health recommendations for individual,
organizational, and jurisdictional decisions than data on community
transmission rates alone.\38\ This comprehensive approach to assessing
COVID-19 Community Levels can inform decisions about layered COVID-19
prevention strategies, including vaccination and masking to reduce
medically significant disease and limit strain on the healthcare system
and other societal functions.\39\
---------------------------------------------------------------------------
\35\ Supra note 31.
\36\ Indicators for Monitoring COVID-19 Community Levels and
Implementing Prevention Strategies, Centers for Disease Control and
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/downloads/science/Scientific-Rationale-summary_COVID-19-Community-Levels_2022.02.23.pptx (Feb. 23, 2022).
\37\ New COVID-19 admissions and the percent of staffed
inpatient beds occupied represent the current potential for strain
on the health system, while data on new cases acts as an early
warning indicator of potential increases in health system strain in
the event of a COVID-19 surge. Community vaccination coverage and
other local information, like early alerts from surveillance, such
as through wastewater or the number of emergency department visits
for COVID-19, when available, can also inform decision making for
health officials and individuals. Supra note 21.
\38\ Supra note 31.
\39\ Id.
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Using these data, the COVID-19 Community Levels for each county are
classified as low, medium, or high. CDC recommends using county COVID-
19 Community Levels to help determine which mitigation measures, such
as screening, testing, and mask use, should be implemented within a
community.\40\ As of March 10, 2022, 72.7% of U.S. counties are
classified at the low COVID-19 Community Level, 21.2% of U.S. counties
are classified at the medium COVID-19 Community Level, and 6% of U.S.
counties are classified at the high COVID-19 Community Level.\41\
Furthermore, 82.8% of the U.S. population lives in counties classified
as ``low,'' 15% live in counties classified as ``medium,'' and 2.2%
live in counties classified as ``high.'' \42\
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\40\ See supra note 21.
\41\ COVID-19 by County, Centers for Disease Control and
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/your-health/covid-by-county.html (last updated Mar. 10, 2022). Furthermore,
82.8% of the U.S. population lives in counties classified as
``low,'' 15% live in counties classified as ``medium,'' and 2.2%
live in counties classified as ``high.''
\42\ Per internal CDC calculations.
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2. Information Specific to UC
Since the beginning of the pandemic, CBP has maintained myriad
COVID-19 mitigation efforts in order to protect noncitizens and its
workforce.\43\ The
[[Page 15247]]
DHS Office of the Chief Medical Officer has worked with local community
partners whose work is critical to moving individuals safely out of CBP
custody and through the appropriate immigration pathway. Through these
partnerships, DHS has supported state, local, tribal, and territorial
partners and NGOs in developing robust COVID-19 testing and quarantine
programs along the Southwest Border. In addition, vaccine uptake among
the CBP workforce has reached approximately 88% among personnel on the
U.S.-Mexico border.
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\43\ These mitigation efforts include installing plexiglass
dividers in facilities, enhancing ventilation systems, adhering to
CDC cleaning and disinfection guidance, and providing masks to
migrants, as well as providing PPE to CBP personnel. These measures
generally follow the infection prevention control referred to as the
hierarchy of controls. See Hierarchy of Controls, Centers for
Disease Control and Prevention, available at https://www.cdc.gov/niosh/topics/hierarchy/default.html (last visited Mar. 9, 2022). The
hierarchy of controls is used as a means of determining how to
implement feasible and effective control solutions. The hierarchy is
outlined as: (1) Elimination (physically remove the hazard); (2)
Substitution (replace the hazard); (3) Engineering Controls (isolate
people from the hazard); (4) Administrative Controls (change the way
people work); and (5) PPE (protect people with Personal Protective
Equipment). CBP also continues to update the CBP Job Hazard Analysis
and the CBP COVID-19 toolkit based on the latest relevant public
health guidance.
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CDC understands that in the months between the issuance of the
August Order and now, CBP has implemented a robust set of COVID-19
mitigation protocols that have substantially reduced the potential for
COVID-19 spread among UC in CBP and ORR facilities. For many months, UC
had been tested as they were leaving CBP facilities, prior to transfer
to large ORR facilities. On August 25, 2021, CBP began testing UC
during CBP's intake process as well, prior to placing UC in congregate
settings. Intake testing of UC started with those encountered in the
Rio Grande Valley (RGV) Sector of the U.S. Border Patrol--the Sector
that has encountered more than 54% percent of UC over the past 12
months. This model has subsequently been expanded to other high-
encounter Border Patrol Sectors, including Tucson (January 26, 2022),
El Paso (February 3, 2022), and Del Rio (February 3, 2022). Taken
together, these Sectors account for over 87% of UC encounters over the
past 12 months--indicating that the large majority of UC are now going
through this intake processing protocol.
Pursuant to these protocols, UC encountered by Border Patrol agents
are tested for COVID-19 in a sheltered, open air location during intake
processing prior to entering congregate settings, thus ensuring the
ability to segregate UC by test results, provide appropriate care to UC
who have tested positive, and minimize further spread. UC that test
positive for COVID-19 are cohorted together and kept physically
separate from UC who test negative. UC who test positive for COVID-19
go through a streamlined designation and referral process for ORR
placement that is substantially faster than the process for other UC,
generally resulting in transfers to ORR within 8 to 12 hours of
encounter. UC who test positive are transported together (and
separately from other UC) to designated ORR facilities that are
designed to provide robust care for COVID-19 positive children and to
minimize the chance of transmission. UC who test negative go through
the normal processing, as applied to UC, and are tested again when they
are discharged from CBP facilities prior to transport to large ORR
facilities. UC who test positive at this second stage are routed to
designated ORR facilities to minimize the potential for COVID-19
spread. All UC are subject to masking requirements while in CBP
custody.
Since the inception of these intake processing protocols, CBP has
tested more than 45,000 UC with an overall positivity rate of 10%.
Consistent with the decline in COVID-19 positivity rates more
generally, the UC overall positivity rate has been declining. During
the first week of March 2022, the overall positivity rate for UC in CBP
custody was around 6%, down from a high of nearly 20% in early February
2022.
CBP's intake processing protocols have also led to a significant
decrease in COVID-19 positivity rates for UC in ORR care. Following the
start of COVID-19 testing for UC as part of the CBP intake process in
August, there was a significant decrease in the proportion of children
referred to ORR from the RGV Sector testing positive for COVID-19
within the first four days of ORR custody, as compared to the pre-
testing period. As of March 5, 2022, COVID-19 positivity rates in ORR
shelter facilities ranged from 4% to 15%--a number that includes those
in facilities designed specifically to house COVID-positive UC. Once UC
are transferred to ORR care, ORR has in place a range of other
mitigation measures, as detailed below, to include universal and proper
wearing of masks, physical distancing, frequent hand washing, cleaning
and disinfection, improved ventilation, staff vaccination, and
cohorting UC according to their COVID-19 test status. Due to
operational and facility constraints, CBP reports that it is not able
to replicate this robust COVID-19 testing and isolation program for SA
and FMU in its custody.
II. Public Health Reassessment
A. Changing Public Health Conditions
CDC continually reassesses the development of the COVID-19 pandemic
and the need for continued measures under 42 U.S.C. 265, 268 and 42 CFR
71.40, the authorities that support the CDC Orders.\44\ The public
health reassessment for UC described herein is based upon the most
recent science and data available to CDC. Based upon these data, CDC
has determined that while the use of the CDC Orders to reduce the
numbers of noncitizens held in congregate settings in POEs and Border
Patrol stations has been part of the layered COVID-19 mitigation
measures over the last two years, less restrictive measures than those
outlined in prior CDC Orders are now available with respect to UC to
mitigate the introduction, transmission, and spread of COVID-19. While
the CDC Orders provided an important COVID-19 mitigation measure during
certain phases of the pandemic by reducing the number of noncitizens
held in congregate settings, other public health measures such as
workforce testing, widespread vaccination, variant action plans, and
mitigation measures specifically available for the UC population, are
now available to provide necessary public health protection for
noncitizens, Americans, and the DHS workforce.
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\44\ See supra note 9.
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CDC believes that the widespread availability of tests for the
general public, in addition to other methods of surveillance, will
permit the workforce to rapidly institute necessary mitigation measures
in the event that cases of COVID-19 are detected. At the same time,
vaccination rates are increasing both at home and abroad. Vaccination
among the American public and the DHS workforce in particular has been
largely successful and, as stated in the August Order, widespread
vaccination of federal employees and personnel in congregate settings
at POE and U.S. Border Patrol stations is a critical step toward the
normalization of border operations.\45\ Since August 2021, vaccination
rates in the countries of origin for the current majority of UC have
also increased dramatically.\46\ Such increased global vaccination
rates, as well as higher rates of infection-induced immunity globally,
provide additional layers of protection. As a public health matter, CDC
strongly recommends that all individuals,
[[Page 15248]]
including noncitizens, receive a COVID-19 vaccine. This aligns with
CDC's emphasis on global vaccination. Even if full vaccination cannot
be assured, CDC believes vaccination of as many people as possible
provides some level of protection against severe illness and
hospitalization, thereby protecting citizens, noncitizens and the U.S.
healthcare system.
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\45\ CBP most recently reported vaccination rates between 75%
and 91% among its U.S. Border Patrol and Office of Field Operations
personnel.
\46\ El Salvador, Guatemala, and Honduras constitute the top
three countries of origin for UC. Rates of vaccination for each
country are as follows: El Salvador 65% fully vaccinated, 4.8% only
partly vaccinated; Guatemala: 31% fully vaccinated, 8.5% only partly
vaccinated; Honduras: 45% fully vaccinated, 8.5% only partly
vaccinated. Coronavirus (COVID-19) Vaccinations, Our World in Data,
https://ourworldindata.org/covid-vaccinations (last visited Mar. 11,
2022).
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The August Order also highlighted the threat posed by emerging
variants and the potential for a future vaccine-resistant variant,
either of which could negatively impact U.S. communities and local
healthcare resources.\47\ Based in part on these threats, CDC concluded
at that time that an Order under 42 U.S.C. 265 should remain in place,
pending further improvements in the public health situation, and
subject to continual assessment.\48\ Since the August Order, public
health officials have learned a great deal about variants and how best
to respond to them. In response to Omicron, the U.S. Government
developed a comprehensive plan for monitoring COVID-19, swiftly
adapting public health tools to combat a new variant, and deploying
emergency resources to help communities.\49\ This plan includes a
commitment to ensuring that variant surveillance, vaccines, tests, and
treatments can be updated and deployed quickly.\50\
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\47\ 86 FR 42828, 42837.
\48\ Id.
\49\ See supra note 22.
\50\ Id.
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As noted above, a significant majority of the U.S. population
currently lives in an area classified as having a ``low'' COVID-19
Community Level,\51\ meaning most of the population can operate under
more relaxed COVID-19 mitigation strategies.\52\ Noteworthy for
purposes of this reassessment, as of March 10, 2022, of the 24 U.S.
counties along the U.S.-Mexico border, 91% of counties on the Southwest
Border are now classified as having a ``low''or ``medium'' COVID-19
Community Level.\53\
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\51\ See supra note 42.
\52\ See supra note 31.
\53\ See supra note 41 (noting 54% (n=13) of counties along the
U.S.-Mexico border are considered ``Low'' (San Diego County, CA;
Imperial County, CA; Luna, NM; Dona Ana County, NM; Otero County,
NM; Eddy County, NM; Lea County, NM; Presidio County, TX; Brewster
County, TX; Terrell County, TX; Webb County, TX; Zapata County, TX;
Cameron County, TX); 37% of counties (n=9) along the U.S.-Mexico
border are classified as having COVID-19 community levels '': Pima
County, AZ, Santa Cruz County, AZ; Cochise County, AZ; El Paso
County, TX; Hudspeth County, TX; Val Verde County, TX; Kinney
County, TX; Maverick County, TX; and Starr County, TX); and 8% of
counties (n=2) along the U.S.-Mexico border are classified as having
COVID-19 community levels: Yuma, County, AZ and Hidalgo County, TX).
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B. Public Health Factors Specifically Relevant to UC Population
For all the reasons set forth above, it is CDC's assessment that
there is no longer a public health rationale to apply to UC the August
Order and all related prior orders issued pursuant to 42 U.S.C. 265,
268 and 42 CFR 71.40. Moreover, as explained in the July Exception, UC
are less likely than FMU and SA to introduce COVID-19.\54\ In addition,
UC as a population are subject to unique care within CBP and ORR
facilities.\55\ These facilities are able to provide robust mitigation
measures that have proven to be effective in managing COVID-19 and
minimizing the risk of spread. These reasons serve as an additional
basis to those outlined herein for immediately terminating the August
Order and all prior Orders as to UC.
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\54\ 86 FR 38717 (July 22, 2021).
\55\ UC not subject to an order under 42 U.S.C. 265 are
generally processed under immigration processes under Title 8 of the
U.S. Code and referred from CBP to ORR for care and custody,
according to the usual legal framework governing such referrals.
Upon transfer to ORR custody, UC are transported to facilities that
operate under cooperative agreements or contracts with HHS and must
meet ORR requirements to ensure a high level of quality, child-
focused care by appropriately trained staff. At these facilities,
case managers work to identify and ultimately place UC with vetted
sponsors (usually family members within the United States). 86 Fed.
Red. 38717, 38719 (July 22, 2020).
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Following the temporary exception of UC from expulsion in January
2021, CDC formally excepted UC from the then-in-place October 2020
Order in July 2021. The July Exception was based on a public health
assessment of the specific treatment of UC and the care available to
them through ORR and was fully incorporated by reference into CDC's
subsequent August Order.\56\
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\56\ See supra at note 1.
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On March 4, 2022, the U.S. District Court for the Northern District
of Texas granted a motion for Preliminary Injunction brought by the
State of Texas and ordered that the July Exception for UC and its
incorporation into the August Order be enjoined, with the injunction
stayed through Friday, March 11, 2022. Even prior to that court order,
CDC has been reviewing whether the August Order should remain in place
as part of its regular public health reassessment every 60 days.
Although CDC continues to complete the next regularly scheduled
reassessment, CDC accelerated its ongoing and review determined an
immediate completion of the assessment of the current public health
situation with regard to UC was necessary due to the impending
effective date of the injunction. Based on that reassessment, and after
carefully considering the issues raised in the court's order, CDC has
determined that the current public health situation does not support
the application of the August Order to UC. Per the terms of 42 U.S.C.
265 itself, this lack of public health justification means the
suspension of the right to introduce UC is not an available measure. In
addition, the COVID-19 public health mitigation measures already in
place for UC described herein reinforce CDC's determination that the
August Order and all related prior orders issued pursuant to 42 U.S.C.
265, 268 and 42 CFR 71.40 should be terminated as to UC.
Following the temporary exception of UC from the October Order in
January 2021, the United States experienced an increase in the number
of UC arriving daily at the Southwest Border. In response, HHS and ORR,
in conjunction with the Federal Emergency Management Agency (FEMA) and
with the assistance of the Department of Defense, greatly expanded the
capacity for intake and processing of UC. At its height, ORR had
capacity of over 30,000 beds \57\ and nearly 23,000 children \58\ were
in its care. Currently, ORR has a capacity of nearly 14,000 beds and
fewer than 10,000 children are in ORR care as of March 9, 2022.\59\ ORR
has successfully processed and discharged over 159,000 UC since January
2021.\60\ The successful efforts to expand capacity for UC have
resulted in sufficient capacity at ORR sites--both along the border and
in the interior--and significantly reduced the length of time that UC
remain in CBP custody. As of March 11, 2022, the average time a UC
remained in CBP custody before transferring to ORR custody was 23
hours, and no UC have been in CBP custody for over 72 hours.\61\ This
represents a substantial improvement from early 2021.\62\ While the
number of UC encountered may remain at elevated levels, expanded ORR
capacity and improved processing methods have resulted in UC remaining
in CBP custody for shorter periods of time.
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\57\ Per May 2021 monthly data from ORR.
\58\ Per April 2021 monthly data from ORR.
\59\ Per data from ORR.
\60\ Id. From January 2021 through February 2022, 15,492 UC have
been discharged from ORR care.
\61\ As reported by ORR.
\62\ For comparison, on March 29, 2021, nearly 5,500 UC were in
CBP custody, with 3,540 of those UC in custody for longer than 72
hours; as of March 31, 2021, the average time in CBP custody for UC
was 131 hours.
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With CDC's assistance and guidance, ORR also has implemented COVID-
19 testing protocols for UC in its care and
[[Page 15249]]
continues to practice other mitigation measures to prevent and curtail
transmission of the SARS-CoV-2 virus among UC in its care. These
strategies include universal and proper wearing of masks, physical
distancing, frequent hand washing, cleaning and disinfection, improved
ventilation, staff vaccination, and cohorting UC according to their
COVID-19 test status. Per a CDC recommendation, ORR conducts serial
testing of staff, as feasible, to allow early detection of a possible
outbreak.\63\ ORR contract and grantee staff working in facilities
serving UC are encouraged to receive the COVID-19 vaccine.\64\ As
advised by CDC, ORR also restricts movement of unvaccinated personnel
between facilities to reduce potential outbreaks resulting from
transfer of unvaccinated staff between shelters. These measures help
reduce the spread of COVID-19 among UC prior to the UC being discharged
to vetted sponsors in U.S. communities.
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\63\ In ORR facilities where the risk of transmission is
moderate to high, public health officials working collaboratively
with ORR facilities can determine the appropriateness of offering
screening and repeat testing of randomly selected asymptomatic staff
and children at the facility, as feasible, to identify cases and
prevent secondary transmission.
\64\ Additional criteria (e.g., continued symptom monitoring and
correct and consistent wearing of masks) should be met by ORR as
outlined on CDC's website. See Science Brief: Options to Reduce
Quarantine for Contacts of Persons with SARS-CoV-2 Infection Using
Symptom Monitoring and Diagnostic Testing, Centers for Disease
Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/more/scientific-brief-options-to-reduce-quarantine.html (last
updated Dec. 2, 2020).
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In addition to the mitigation measures at ORR facilities described
above, CDC provided updated recommendations to ORR regarding the
vaccination of UC ages 5 and older.\65\ ORR subsequently approved the
administration of COVID-19 vaccine for age-eligible children. Under ORR
care, children ages 5 and over are offered a COVID-19 vaccine as soon
as possible, as long as there are no contraindications and vaccination
does not delay unification of UC with sponsors. Of the total population
of UC in ORR care, approximately 98% are age-eligible for vaccination
and, as of March 8, 2022, ORR has administered at least one dose of the
COVID-19 vaccine to 62,644 UC and a second dose to 15,994, with a
refusal rate under 1%.\66\ CDC considers these vaccination efforts to
be a critical risk reduction measure that supports excepting UC from
the August Order.
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\65\ Field Guidance #17--COVID-19 Vaccination of Unaccompanied
Children (UC) in ORR Care, Internal Document (CDC memo to ORR,
revised Nov. 8, 2021).
\66\ Per data reported by ORR.
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Although 20,682 UC total have tested positive for COVID-19 while at
ORR shelters during the period of March 24, 2020 to March 3, 2022,
20,304 of those UC testing positive have successfully completed medical
isolation, with few requiring medical treatment. Similarly, 13,148
cumulative COVID-19 cases have been reported from Emergency Intake
Sites (EIS) as of March 2, 2022; however, only approximately 37 of the
UC in this EIS group have required hospitalization.\67\
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\67\ As reported by ORR.
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These numbers indicate that the risk of overburdening the local
healthcare systems with UC presenting with severe COVID-19 disease
remains low. Based on the robust network of ORR care facilities and the
testing and medical care available therein, as well as COVID-19
mitigation protocols that include vaccination for personnel and
eligible UC, there is very low likelihood that processing UC in
accordance with existing Title 8 immigration procedures will result in
undue strain on the U.S. healthcare system or healthcare resources.
Moreover, UC released to a vetted sponsor do not pose a significant
level of risk for COVID-19 spread into the community because they are
released after having undergone testing, quarantine or isolation, and
vaccination when possible. UC sponsors also are provided with
appropriate medical and public health direction.
Based on the public health reassessment set forth above, as well as
the successful COVID-19 mitigation measures that were and continue to
be in place for UC, there is no public health basis to resume the
suspension of introduction of UC. Resuming the suspension of
introduction of UC would not significantly decrease the risk of the
introduction, transmission, or spread of COVID-19 at POE or Border
Patrol stations. Nor does the introduction of UC into the United States
pose a serious danger of the introduction of COVID-19 such that
applying the August Order to UC is required in the interest of the
public health.
III. Legal Considerations
A. Concerns Raised by the District Court
In enjoining CDC from enforcing the exception for UC set forth in
the July Exception and August Order, the court in Texas v. Biden found
that the July Exception and August Order likely were arbitrary or
capricious in violation of the Administrative Procedure Act (APA) for
several reasons.\68\ CDC takes the court's concerns seriously and has
considered each of them in issuing this Order. First, the court stated
that ``[t]he record before the Court demonstrates that nothing changed
between the October 2020 Order, the July 2021 [Order], and the August
2021 Order. The COVID-19 virus (still) remains a threat.'' \69\
Regardless of the public health conditions leading up to the July
Exception and August Order, CDC's most recent reassessment of the
status of the COVID-19 pandemic and associated public health risks
makes clear that circumstances have now changed significantly. Case
counts and hospitalization rates are decreasing, vaccination rates are
increasing, and the availability of testing and treatments also are
increasing. These changes and continuing trends in the public health
conditions since the conclusion of CDC's previous reassessment support
the decision to terminate the Orders as to UC immediately.
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\68\ 2022 WL 658579, at *16-*18.
\69\ Id. at *16.
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Additionally, the court found that the July Exception and August
Order did not adequately explain why UC were unlikely to spread COVID-
19 to others when they spend, on average, more than a day \70\ in
congregate settings at DHS facilities ``where they can expose other
detainees, DHS personnel, and American citizens and residents to
whatever viruses they are carrying.'' \71\ CDC has considered the
court's concern and concluded that because of the overall decrease in
cases of COVID-19 throughout the country, including at the Southwest
Border, coupled with the increase in vaccination rates, there is an
extremely low likelihood that intake processing of UC in DHS facilities
will pose a serious danger to the public health. Importantly, vaccines
are now widely available and vaccination rates have increased among the
American public in general and the DHS workforce in particular, as well
as in the countries of origin for the current majority of UC.\72\
Additionally, CBP continues to implement a variety of mitigation
efforts to prevent the spread of COVID-19 in POE and U.S. Border Patrol
facilities, as detailed above.\73\
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\70\ In contrast, SA and FMU spend, on average, 2-3 days in
congregate settings at the border.
\71\ Id. at *16.
\72\ See COVID-19 Vaccinations in the United States, Centers for
Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-people-onedose-pop-5yr (updated Mar. 11,
2022).
\73\ See supra note 43.
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Next, the court found that ``instead of trying to prevent [UC] from
spreading the viruses they are potentially carrying to the interior of
the United States, the Government chose to send [UC] away
[[Page 15250]]
from the facilities where the Government could monitor them and their
health.'' \74\ CDC clarifies that generally DHS is required by the
Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) to
promptly transfer UC to ORR. Even after such transfer, UC remain in
U.S. Government custody through ORR's network of providers where they
are subject to robust COVID-19-mitigation protocols, including
distancing, testing, masking, quarantining, cleaning and disinfection,
improved ventilation, staff vaccination, and available vaccination for
noncitizen children.\75\ These mitigation measures allow ORR to
identify COVID-19 cases, and the vast majority of UC who tested
positive for COVID-19 while at ORR shelters successfully completed
medical isolation. Unlike other covered noncitizens apprehended at the
border, UC in ORR custody undergo COVID-19 testing twice before being
released to the community. Accordingly, there very low risk that UC are
COVID-19 positive when they are released into the community. Moreover,
under ORR care, eligible children are offered a COVID-19 vaccine as
soon as possible, as long as there are no contraindications and
vaccination does not delay unification of UC with vetted sponsors. When
UC are released to sponsors, ORR provides their sponsors with
appropriate medical and public health direction, including information
on how to obtain additional vaccination doses as needed as well as
quarantine and isolation guidance when appropriate.
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\74\ Texas, 2022 WL 658579, at *16.
\75\ See supra II.B.
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The court also found that the July Exception and August Order did
not explain how ``preventing the spread of COVID-19 between'' UC can
also ``prevent the spread of COVID-19 from the interior of the United
States.'' \76\ CDC has considered the court's concern and determined
that preventing the spread of COVID-19 between UC does prevent the
spread of COVID-19 into the interior because the fewer UC that test
positive for COVID-19, the lower the transmission rates will be from
any UC who is COVID-19 positive into the interior. In any event, as
discussed above, CDC has determined that, given the testing of UC that
occurs prior to transfer to ORR, as well as the robust mitigation
measures implemented by CBP since the August Order and in place at ORR
facilities, UC present very little risk of spreading of COVID-19 when
they are released to their sponsors.
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\76\ Id.
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The court also noted a prior U.S. Border Patrol Chief's statement
that CDC adopted the exception for UC before it issued the February
2021 Order pausing application of the October Order to UC. From this,
the court concluded that CDC's July Exception and August Order
constituted a ``departure from prior policy.'' Regardless of whether
there had been any defects in a prior unannounced decision or in the
February 2021 Order that affected the July Exception and August Order,
CDC is now providing a fuller explanation of its decision to terminate
the Orders with respect to UC immediately given the outcome of its most
recent public-health reassessment.
B. Absence of Reliance Interests
As noted above, in issuing its July Exception, CDC considered the
impact of excepting UC from the October 2020 Order on the local
healthcare systems in light of, among other things, data showing that
the number of UC presenting with severe COVID-19 disease remained
low.\77\ The U.S. District Court for the Northern District of Texas has
found, however, that neither the July Exception nor the August Order
``indicate that the agency considered all of Texas's potential reliance
interests.'' \78\ In issuing this Order, CDC has considered whether
state or local governments, or their subdivisions, have any
``legitimate reliance'' \79\ interests on the inclusion of UC in an
Order under 42 U.S.C. 265. No state or local government could have any
reliance interest relating to the exclusion of UC arising from the
August 2021 Order since it expressly excepted UC.\80\ Because
expulsions of UC under 42 U.S.C. 265 have not been occurring since at
least February 2021, no State could rely on UC being covered by the
August Order, and CDC does not see a need to provide advance notice
that it will continue excepting UC. We therefore focus on the October
2020 Order and its predecessors. CDC finds it useful to distinguish
between potential long-term and short-term reliance interests.
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\77\ See 86 FR at 38,720.
\78\ Texas v. Biden, No. 4:21-cv-0579-P, Doc. 100 at 31.
\79\ See Dep't of Homeland Sec. v. Regents of the Univ. of Cal.,
140 S. Ct. 1891, 1913 (2020).
\80\ See 86 FR at 42838 (``As outlined in the July Exception and
incorporated herein, CDC is fully excepting UC from this Order.'').
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On the issue of long-term reliance interests, CDC has determined
that no state or local government could be said to have legitimately
relied on the October 2020 Order to implement a long-term or permanent
change to its operations because the October 2020 Order was by its very
nature a short-term order subject to change at any time in response to
an evolving public health crisis and is subject to regular review by
CDC. Section 265 may be invoked only if there is a ``serious danger of
the introduction of [a communicable] disease into the United States,
and [if] this danger is so increased by the introduction of persons or
property from such country that a suspension of the right to introduce
such persons and property is required in the interest of the public
health.'' \81\ The statute may be invoked only ``for such period of
time as [CDC] may deem necessary'' to avert such a danger.\82\ Thus,
both Section 265 and HHS's implementing regulation recognize that in
prohibiting the introduction of covered persons ``in whole or in
part,'' \83\ a CDC Order is effective ``only for such period of time
that the Director deems necessary to avert the serious danger of the
introduction of a quarantinable communicable disease.'' \84\
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\81\ 42 U.S.C. 265.
\82\ Id.
\83\ Id.
\84\ 42 CFR 71.40(a).
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Accordingly, CDC's initial order issued under 42 U.S.C. 265, 268
and 42 CFR 71.40 in March 2020 made clear that the order represented a
``temporary suspension of the introduction of [covered] persons into
the United States'' \85\ and that the order would remain effective only
for ``30 days, or until [CDC] determine[s] 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.'' \86\ The
March 2020 Order was subsequently extended on April 20, 2020 and
amended on May 19, 2020. The fact that the policy was frequently
reviewed should have underscored that the use of the Section 265
authority was a temporary measure subject to change at any time. The
October 2020 Order again confirmed this understanding of CDC's
authority under 42 U.S.C. 265, 268 and 42 CFR 71.40, noting the
``temporary'' nature of the suspension of the introduction of covered
persons, and the fact that the Order would be reviewed every 30 days
based on ``the latest information regarding the status of the COVID-19
pandemic and associated public health risks to ensure that the Order
remains necessary,'' and that CDC ``retain[ed] the authority to extend,
modify, or
[[Page 15251]]
terminate the Order, or implementation of [the] Order, at any time as
needed to protect public health.'' \87\
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\85\ 85 FR at 17061 (emphasis added).
\86\ 85 FR at 17068.
\87\ 85 FR at 65807, 65812.
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In addition, in November 2020, the United States District Court for
the District of Columbia enjoined the expulsion of UC on the ground
that Section 265 likely did not authorize such expulsions.\88\ Although
the government appealed the injunction and obtained a stay of the
injunction in January 2021,\89\ there remained legal uncertainty over
the government's authority to apply Section 265 to UC, thus further
rendering it unreasonable for any state or local government to act in
long-term reliance on the continued expulsion of UC under Section 265.
Moreover, as a factual matter, CDC is not aware of, nor has any state
or local government brought to CDC's attention, any reasonable or
legitimate reliance on the continued expulsion of UC under 42 U.S.C.
265. For example, no state or local government has indicated that it
altered its operations, spending, or regulation in light of the prior
application of Section 265 to UC. The total number of UC processed
under Title 8 remains relatively small, rendering it unlikely that
state or local governments would adversely rely on the application of
Section 265 to UC by making any material changes.
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\88\ See P.J.E.S. v. Wolf, 502 F. Supp. 3d 492 (D.D.C. 2020).
\89\ Order, P.J.E.S. v. Mayorkas, et al., No. 20-5357 (D.C. Cir.
Jan. 29, 2021), Doc. No. 1882899.
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Additionally, CDC does not believe that the presence of UC poses a
public health risk sufficient to justify continued application of 42
U.S.C. 265 to UC. Because 42 U.S.C. 265 authorizes the CDC to prevent
the introduction of noncitizens only when necessary to address a public
health risk, no state or local government could rely on Section 265
continuing to be applied in the absence of such a risk. Therefore,
CDC's considered judgment is that no state or local government
currently has a long-term reliance interest in the continued expulsion
of UC under the October 2020 Order and that any long-term reliance
interests that might be said to exist in connection with the continued
expulsion of UC under the October 2020 Order are outweighed by CDC's
determination that there is no public health justification to expel UC
at this time.\90\ To the extent that any state or local government did
rely on the expulsion of UC for purposes of resource allocation despite
the reasons cautioning against such reliance, CDC concludes that
resource allocation concerns do not outweigh CDC's determination that
expulsion of UC is not required to avert a serious danger to public
health.
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\90\ See Regents, 140 S. Ct. at 1913 (explaining that features
evidencing the temporary and non-rights-conferring nature of a
government program ``surely are pertinent in considering the
strength of any reliance interests,'' and can be considered by the
agency).
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CDC has also considered whether there may be any short-term
reliance on the continued expulsion of UC under the October 2020
Order.\91\ Because CDC is unaware of any such reliance beyond the
potential allocation of resources CDC already considered for local
healthcare systems, CDC does not believe that any state or local
government could have reasonably relied, even on a short-term basis, on
the continued expulsion of UC. As noted above, any such reliance would
not have been reasonable given the statutory requirement that 42 U.S.C.
265 be invoked only if there is a ``serious danger of the introduction
of [a communicable] disease into the United States, and that this
danger is so increased by the introduction of persons or property from
such country that a suspension of the right to introduce such persons
and property is required in the interest of the public health,'' as
well as the statutory mandate that Section 265 be utilized only ``for
such period of time as [CDC] may deem necessary'' to avert such a
danger. Any reliance also would have been particularly unwarranted
because UC were subject to expulsion under 42 U.S.C. 265 for only a
very limited time--from March 2020 to November 2020, and then briefly
from January 29, 2021 to shortly before the February 11, 2021 notice.
As such, the exclusion of UC from 42 U.S.C. 265 expulsions has been the
status quo generally since November 2020 and certainly since at least
February 2021. Thus, since the start of this public health emergency,
the period of time during which UC have been excepted from expulsion
under Section 265 is longer than the period of time during which they
were subject to such expulsion. Even if an entity had reasonably relied
on the inclusion of UC in an order under 42 U.S.C. 265 prior to
February 2021, it should have adjusted its position by now. Therefore,
CDC does not believe that any potential short-term reliance interests
can reasonably outweigh CDC's public health determination that there is
no public health justification for expelling UC under 42 U.S.C. 265 at
this time.
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\91\ See Regents, 140 S. Ct. at 1913 (rejecting the government's
argument that the fact that the DACA program provided benefits only
in two-year increments and was said not to confer any substantive
rights ``automatically preclude[d] reliance interests,'' but noting
that such disclaimers ``are surely pertinent in considering the
strength of any reliance interests'').
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Finally, Orders under 42 U.S.C. 265; 268 and 42 CFR 71.40 are not,
and do not purport to be, policy decisions about controlling
immigration; rather, as explained, CDC's exercise of its authority
under Section 265 depends on the existence of a public health
emergency. Thus, to the extent that border communities were relying on
an order under 42 U.S.C. 265 as a means of controlling immigration,
such reliance would not be reasonable or legitimate. Even if such
reliance were reasonable or legitimate, that reliance would not
outweigh CDC's public health assessment.
In conclusion, any such reliance interests, whether short- or long-
term, do not outweigh CDC's determination that expulsion of UC is not
necessary to avert a serious danger to public health. Because
disruption of ordinary processing of UC is a weighty action, CDC does
not believe it is appropriate to resume expulsion when CDC has
concluded that such action is not warranted under the terms of 42
U.S.C. 265.
C. Timing Considerations
As noted in the August Order, CDC reassesses ``[t]he circumstances
necessitating the Order . . . at least every 60 days.'' \92\
Accordingly, CDC has been in the process of evaluating the status of
the pandemic and the evolving public health conditions since the
conclusion of its previous review on January 29, 2022, to determine
whether the Order remains necessary in whole or part to protect the
public health. The current 60-day review process is scheduled to end on
March 30, 2022, and CDC will conclude its reassessment of whether the
Order remains necessary in whole or part to protect the public health
with respect to SA and FMU by that date.
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\92\ Supra note 1.
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CDC had previously excepted UC in its July Exception, as reiterated
and incorporated in its August Order.\93\ On March 4, 2022, the
District Court for the Northern District of Texas issued a preliminary
injunction ``enjoining and restraining'' CDC from enforcing the July
Exception and August Order to the extent that they ``except
unaccompanied alien children from the Title 42 procedures based solely
on their status as unaccompanied alien children'' because, the court
found, CDC had not
[[Page 15252]]
adequately explained its decision to treat UC differently than other
noncitizens subject to the October Order.\94\ The court stayed its
preliminary injunction for seven days.\95\
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\93\ See 86 FR 38,717 (July 22, 2021); 86 FR at 42,837-38; see
also 86 FR 9942 (Feb. 17, 2021).
\94\ Texas v. Biden, No. 4:21-cv-579 (N.D. Tex. Mar. 4. 2022).
\95\ Id.
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Because CDC has determined, after considering current public health
conditions and recent developments, that expulsion of UC is not
warranted to protect the public health, and in recognition of the
unique vulnerabilities of UC, CDC is immediately terminating the CDC
Orders to the extent they apply to UC. Because of their
vulnerabilities, UC are generally treated differently than other
individuals apprehended and processed at the border under the
immigration laws. When Section 265 does not apply, UC generally are
transferred to the care and custody of HHS's ORR pursuant to the
TVPRA.\96\ ORR is able to care for UC while implementing appropriate
COVID-19 mitigation measures, given ORR's robust network of care
facilities that provide testing and medical care, and DHS has already
been excepting UC in accordance with CDC's August Order. Because CDC
has in its expert judgment determined again that, based on current
circumstances, the expulsion of UC under Section 265 is not necessary
to protect the public health, there is no justification for subjecting
UC to the potentially significant harms they could suffer if the CDC
Orders were to be applied to them.\97\ For these reasons, CDC is
terminating the CDC Orders to the extent they apply to UC.
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\96\ See D.B. v. Cardall, 826 F.3d 721, 738 (4th Cir. 2016)
(``The intricate web of statutory provisions relating to [UC]
reflects Congress's unmistakable desire to protect that vulnerable
group.'').
\97\ See Huisha-Huisha v. Mayorkas,--F.4th--, 2022 WL 628061,
*12 (D.C. Cir. Mar. 4, 2022) (noting that some migrants who are
expelled could be subject to persecution and victimization).
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D. Basis for Termination With Respect to UC Under Sections 362 and 365
of the PHS Act and 42 CFR 71.40
CDC is hereby immediately terminating the August Order \98\ and all
prior orders issued pursuant to sections 362 and 365 of the PHS Act (42
U.S.C. 265, 268) and the implementing regulation at 42 CFR 71.40 to the
extent they apply to UC.\99\
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\98\ See supra notes 1 and 4.
\99\ See supra note 7.
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CDC is committed to using the least restrictive means necessary and
avoiding the imposition of unnecessary burdens in exercising its
communicable disease authorities. This aligns with the underlying legal
authority in 42 U.S.C. 265, which makes clear that this authority
extends only for such period of time deemed necessary to avert the
serious danger of the introduction of a quarantinable communicable
disease into the United States.\100\ Such an order must also be
predicated, in part, upon a determination that the danger of such
introduction is so increased that a suspension of the right to
introduce such persons into the United States is required in the
interest of public health.\101\
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\100\ 42 U.S.C. 265; 42 CFR 71.40.
\101\ 42 CFR 71.40.
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CDC has considered these and other relevant factors in the
foregoing reassessment with respect to UC, including the overall shift
in the U.S. Government response to the pandemic, and in the context of
reviewing the August Order with respect to UC, has determined that less
restrictive means are available to avert the public health risks
associated with the introduction, transmission, and spread of COVID-19
into the United States. Although COVID-19 continues to spread within
the United States, the numerous tools for disease prevention,
mitigation, and treatment which have been implemented over the past two
years (including those specific to UC in the custody of the federal
government) are sufficient at this point in time to protect public
health, such that an order suspending the right to introduce UC under
42 U.S.C. 265 is no longer required in the interest of public health.
CDC is not addressing application of the August Order to FMU and SA
through this termination.
IV. Issuance and Implementation of Termination
A. Termination as to UC
Based on the foregoing public health reassessment, I hereby
Terminate immediately with respect to UC the August Order and all
previous orders issued pursuant to Sections 362 and 365 of the PHS Act
(42 U.S.C. 265, 268) and their implementing regulation at 42 CFR
71.40.\102\
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\102\ Control of Communicable Diseases; Foreign Quarantine:
Suspension of the Right to Introduce and Prohibition of Introduction
of Persons into United States from Designated Foreign Countries or
Places for Public Health Purposes, 85 FR 56424 (Sept. 11, 2020); 42
CFR 71.40.
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Immediate termination of the August Order with respect to UC is
based on the current status of the COVID-19 pandemic and the public
health mitigation measures available for UC and the public. In making
this determination, I have considered myriad facts, including
epidemiological information regarding COVID-19, the emergence of SARS-
CoV-2 variants, the morbidity and mortality associated with the disease
for individuals in certain risk categories, COVID-19 Community Levels,
national levels of transmission and immunity, the availability and
efficacy of vaccination and treatments, as well as care available to UC
and public health concerns with congregate settings at border
facilities. While holding UC in congregate settings with limited
options for COVID-19 mitigation is accompanied by some inherent risk,
the overall public health landscape in the United States has changed
such that the justification for the August Order is no longer sustained
with respect to UC particularly in light of the mitigation measures as
applied to UC.
As noted previously, CDC is not addressing application of the
August Order to FMU and SA through this termination. DHS will continue
to exercise its discretion to issue exceptions pursuant to a DHS-
approved process or on a case-by-case basis, based on the totality of
the circumstances as set forth in the August Order to FMU and SA, as
appropriate.
B. APA Review
This Termination shall be immediately effective with respect to UC.
I consulted with DHS and other federal departments as needed before I
issued this Order and requested that DHS aid in the implementation of
this Termination and continued aspects of the Order because CDC does
not have the capability, resources, or personnel needed to do so.\103\
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\103\ 42 U.S.C. 268; 42 CFR 71.40(d).
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This Termination, like the preceding Orders issued under this
authority, is not a rule subject to notice and comment under the APA.
Even if it were, 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 Termination; it would be
impracticable and contrary to public health practices, the public
interest, and immigration laws that apply in the absence of an order
under 42 U.S.C. 265 to delay the issuing and effective date of this
Termination.\104\ In addition, this Order concerns ongoing discussions
with Canada, Mexico, and other countries regarding how best to control
COVID-19 transmission over shared borders and therefore directly
``involve[s] . . . a . . . foreign affairs function of the United
States.'' \105\ Thus, for both of the foregoing reasons, notice and
comment
[[Page 15253]]
and a delay in effective date are not required.
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\104\ 5 U.S.C. 553(a)(1).
\105\ 5 U.S.C. 553(a)(1).
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With this Termination, I hereby determine that the danger of
further introduction, transmission, or spread of COVID-19 into the
United States from UC, as defined in the August Order, has ceased to be
a serious danger to the public health and therefore the continuation of
the August Order, and all previous orders issued under the same
authority, with respect to UC is no longer necessary to protect public
health. Nothing in this Termination will prevent me from issuing a new
Order under 42 U.S.C. 265, 268 and 42 CFR 71.40 based on new findings,
as dictated by public health needs.
Sherri Berger,
Chief of Staff, Centers for Disease Control and Prevention.
[FR Doc. 2022-05687 Filed 3-15-22; 11:15 am]
BILLING CODE 4163-18-P
