[Federal Register Volume 86, Number 138 (Thursday, July 22, 2021)]
[Notices]
[Pages 38717-38720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15699]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Disease Control and Prevention


Public Health Determination Regarding an Exception for 
Unaccompanied Noncitizen Children From the Order Suspending the Right 
To Introduce Certain Persons From Countries Where a Quarantinable 
Communicable Disease Exists

AGENCY: Centers for Disease Control and Prevention (CDC), Department of 
Health and Human Services (HHS).

ACTION: Notice.

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SUMMARY: The Centers for Disease Control and Prevention (CDC), a 
component of the Department of Health and Human Services (HHS), 
announces an Order excepting unaccompanied noncitizen children (UC) 
from the Order Suspending the Right to Introduce Certain Persons from 
Countries Where a Quarantinable Communicable Disease Exists, issued on 
October 13, 2020 (October Order). CDC finds that, at this time, there 
is appropriate infrastructure in place to protect the children, 
caregivers, and local communities from elevated risk of COVID-19 
transmission as a result of the introduction of UC, and U.S. healthcare 
resources are not significantly impacted by providing UC necessary 
care. CDC believes the COVID-19-related public health concerns 
associated with UC introduction can be adequately addressed without the 
UC being subject to the October Order, thereby permitting the 
government to better address the humanitarian challenges for these 
children. Therefore, CDC is fully excepting UC from the October Order, 
and the Notice regarding the temporary exception of UC published 
February 17, 2021 is hereby superseded.

DATES: This Order went into effect July 16, 2021.

FOR FURTHER INFORMATION CONTACT: Tiffany Brown, Deputy Chief of Staff, 
Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS 
H21-10, Atlanta, GA 30329. Phone: 404-639-7000. Email: 
[email protected].

SUPPLEMENTARY INFORMATION: As part of government efforts to mitigate 
the introduction, transmission, and spread of COVID-19, CDC issued the 
October Order,\1\ suspending the right to

[[Page 38718]]

introduce certain persons into the United States (U.S.) from countries 
or places where a quarantinable communicable disease exists to protect 
the public's health from an increase in risk of the introduction of 
COVID-19. The Order applied specifically to certain noncitizens as 
defined \2\ who would otherwise be introduced into a congregate setting 
in land or coastal ports of entry (POE) or Border Patrol stations at or 
near the U.S. borders with Canada and Mexico. On February 17, 2021,\3\ 
CDC published a notice announcing the temporary exception from 
expulsion of unaccompanied noncitizen children \4\ (UC) encountered in 
the United States from the October Order.\5\
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    \1\ 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. 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).
    \2\ See 85 FR 65806, 65807.
    \3\ Notice of Temporary Exception from Expulsion of 
Unaccompanied Noncitizen Children Encountered in the United States 
Pending Forthcoming Public Health Determination, 86 FR 9942 (Feb. 
17, 2021).
    \4\ CDC's understanding is that this class of individuals is 
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 ORR custody, were DHS to make the necessary immigration 
determinations under Title 8 of the U.S. Code.
    \5\ Notice of Temporary Exception from Expulsion of 
Unaccompanied Noncitizen Children Encountered in the United States 
Pending Forthcoming Public Health Determination, 86 FR 9942 (Feb. 
17, 2021).
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    As detailed in the Order, CDC has reviewed the current situation 
with regards to the COVID-19 public health emergency and UC in 
immigrations facilities and has concluded that it is appropriate to 
fully except UC from the October Order given the measures in place to 
prevent and mitigate transmission of COVID-19 in this population. CDC 
finds that the robust network UC care facilities operated by the Office 
of Refugee Resettlement (ORR), a component of HHS, the testing and 
medical care available therein, as well as COVID-19 mitigation 
protocols including vaccination for personnel and eligible UC, result 
in very low likelihood that processing UC in accordance with existing 
immigration procedures under Title 8 of the U.S. Code will result in 
undue strain on the U.S. healthcare system or healthcare resources. 
Moreover, UC released to a vetted sponsor or placed in a permanent ORR 
shelter do not pose a significant level of risk for COVID-19 spread 
into the community because they are released after having undergone 
testing, quarantine and/or isolation, and vaccination when possible, 
and their sponsors are provided with appropriate medical and public 
health direction.
    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.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 Determination Regarding an Exception for Unaccompanied 
Noncitizen Children From the Order Suspending the right to Introduce 
Certain Persons From Countries Where a Quarantinable Communicable 
Disease Exists

    As part of U.S. government efforts to mitigate the introduction, 
transmission, and spread of COVID-19, CDC issued an Order on March 20, 
2020 (March Order), later replaced on October 13, 2020 (October 
Order),\6\ suspending the right to introduce \7\ certain persons into 
the United States from countries or places where a quarantinable 
communicable disease \8\ exists in order to protect the public health 
from an increase in risk of the introduction of COVID-19. The Orders 
applied specifically to covered noncitizens \9\ who would otherwise be 
introduced into a congregate setting in land or coastal ports of entry 
(POE) or Border Patrol stations at or near the U.S. borders \10\ with 
Canada and Mexico. On February 17, 2021, CDC published a notice \11\ 
(February Notice) announcing the temporary exception of unaccompanied 
noncitizen children from the October Order; the February Notice stated 
that CDC would complete a public health assessment and publish an 
additional notice or a modified Order. As explained below, CDC has 
concluded that it is appropriate to except unaccompanied noncitizen 
children \12\ (UC) from the October Order given the measures in place 
to prevent and mitigate transmission of COVID-19 in this population.
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    \6\ 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, extended on 
April 20, 2020, and amended May 19, 2020. 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).
    \7\ ``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).
    \8\ Quarantinable communicable diseases are any of the 
communicable diseases listed in Executive Order, as provided under 
Sec.  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), and influenza caused by novel or 
reemergent influenza viruses that are causing, or have the potential 
to cause, a pandemic. 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).
    \9\ This Order is using the term ``covered noncitizens'' to have 
the same meaning as ``covered aliens'' in the October Order. See 
October Order, 85 FR 65806, 65807 (defining ``covered aliens'' as 
``persons traveling from Canada or Mexico (regardless of their 
country of origin) who would otherwise be introduced into a 
congregate setting in a land or coastal Port of Entry (POE) or 
Border Patrol station at or near the United States borders with 
Canada or Mexico,'' subject to certain exceptions. These persons 
``would typically be aliens seeking to enter the United States at 
POEs who do not have proper travel documents, aliens whose entry is 
otherwise contrary to law, and aliens who are apprehended near the 
border seeking to unlawfully enter the United States between 
POEs.'').
    \10\ When U.S. Customs and Border Protection (CBP) or the U.S. 
Department of Homeland Security (DHS) partner agencies encounter 
noncitizens off the coast closely adjacent to the land borders, it 
transfers the noncitizens for processing in POE or Border Patrol 
stations closest to the encounter. Absent the October Order, such 
noncitizens would be held in the same congregate settings and 
holding facilities as any encounters along the land border, 
resulting in similar public health concerns related to the 
introduction, transmission, and spread of COVID-19.
    \11\ Notice of Temporary Exception from Expulsion of 
Unaccompanied Noncitizen Children Encountered in the United States 
Pending Forthcoming Public Health Determination, 86 FR 9942 (Feb. 
17, 2021).
    \12\ CDC's understanding is that this class of individuals is 
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 ORR custody, were DHS to make the necessary immigration 
determinations under Title 8 of the U.S. Code.
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    Under the March and October Orders, UC were included as part of the 
covered noncitizens for whom the right of introduction into the United 
States was suspended; however, UC largely have been excepted from the 
application of the Order, first pursuant to judicial

[[Page 38719]]

action,\13\ and later under the February Notice. As a result, since 
November 18, 2020, UC have generally been processed under regular 
immigration processes under Title 8 of the U.S. Code and therefore 
referred from U.S. Customs and Border Protection (CBP), an agency 
within the U.S. Department of Homeland Security (DHS), to the Office of 
Refugee Resettlement (ORR) within the U.S. Department of Health and 
Human Services' (HHS) Administration for Children and Families (ACF) 
for care and custody, according to the usual legal framework governing 
such referrals.\14\ Pursuant to these requirements, UC encountered in 
the United States by CBP generally are transferred to ORR within 72 
hours of intake at a POE or Border Patrol station.\15\ 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. ORR operates 210 facilities in 22 states. 
At these facilities, case managers work to identify and ultimately 
place UC with vetted sponsors (usually family members within the United 
States).
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    \13\ Dkt. No. 80, P.J.E.S. v. Mayorkas et al., No. 1:20-cv-02245 
(D.D.C. Nov. 18, 2020).
    \14\ See 8 U.S.C. 1232; Stipulated Settlement Agreement, Flores 
v. Reno, No. CV 85-cv-4544 (C.D. Cal. Jan. 17, 1997).
    \15\ 8 U.S.C. 1232(b)(3).
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    Beginning in mid-2020, the United States began experiencing an 
increase in the number of UC arriving daily at the southern border. By 
February 2021, due to the record numbers of transfers to ORR, UC being 
held in CBP custody awaiting ORR transfer increased due to a lack of 
available space in ORR facilities. ORR and other government agencies 
responded to the influx of UC by rapidly expanding capacity and 
developing robust, safe COVID-19 protocols in consultation with CDC.
    In conjunction with the Federal Emergency Management Agency (FEMA) 
and with the assistance of the Department of Defense, HHS and ORR 
opened temporary intake facilities along the U.S. southern border and 
in the interior to add capacity. A total of 14 Emergency Intake Sites 
(EIS) \16\ were opened across the United States. CDC assisted ORR by 
sending medical epidemiologists and other public health professionals 
to provide technical assistance on COVID-19 mitigation protocols. ORR 
now has a capacity of over 20,000 beds; currently, over 15,100 children 
are in its care. ORR has successfully processed and discharged over 
55,000 UC since January 20, 2021. The successful efforts to expand 
capacity for UC have resulted in sufficient capacity at ORR sites--both 
along the border and in the interior--significantly reducing the length 
of time that UC remain in CBP custody. As of July 13, 2021, the current 
average time a UC remained in CBP custody before transferring to ORR 
custody was 26 hours, and four UC have been in CBP custody for over 72 
hours.\17\ This represents a substantial improvement from early 
2021.\18\ 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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    \16\ EIS are intended to be a temporary measure providing a 
standard of care consistent with the best interest of children 
during an emergency situation. When fully operational with 
appropriate staffing and basic medical resources, EIS provide a 
safer, less crowded environment where UC are cared for, processed as 
quickly as possible, and are either released to a sponsor or 
transferred to an appropriate ORR facility for longer-term care. 
When no longer necessary, EIS facilities are demobilized.
    \17\ HHS Executive Leadership Information Brief (internal 
document). Published July 12, 2021.
    \18\ 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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    The processes in place at the EIS and at ORR's regular facilities 
afford sufficient resources and time to identify SARS-CoV-2 cases and 
implement environmental controls to attenuate the risk of COVID-19 
infection and spread.\19\ With CDC's assistance and guidance, ORR also 
has implemented COVID-19 testing regimes for UC in its care and 
continues to practice other mitigation measures to further prevent and 
curtail any 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 CDC recommendation, ORR conducts serial 
testing of staff to allow early detection of a possible outbreak.\20\ 
ORR contract staff working in facilities serving UC are encouraged to 
receive the COVID-19 vaccine.\21\ As advised by CDC, ORR 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 being introduced into U.S. communities.
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    \19\ Specifically, ORR currently uses the following COVID-19 
protocols for UC at EIS: UC are tested for COVID-19 by CBP prior to 
being transported to an EIS and then are also tested upon arrival to 
EIS. UC are required to quarantine for the first 7 days after 
admission to an EIS and can be released from quarantine on the 
morning of day 8 if they remain asymptomatic and had a negative 
COVID-19 test in the 48 hours prior. In addition to testing at 
admission and during quarantine, UC are routinely tested during 
their stay at EIS (e.g., every three days), and any UC that develops 
symptoms consistent with COVID-19 infection is immediately tested. 
UC who test positive for COVID-19 are required to be isolated for 10 
days from the date the positive test was collected, or 10 days from 
the date of symptom onset if asymptomatic. Contact tracing is 
conducted whenever anyone tests positive for COVID-19; UC exposed to 
COVID-19 are quarantined for seven days, tested on the 5th, 6th, or 
7th day of their quarantine, and are released upon receiving a 
negative test result. ORR has also issued similar COVID-19 guidance 
to licensed facilities.
    \20\ 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.
    \21\ 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 EIS and ORR facilities 
outlined above, following FDA expansion of the emergency use 
authorization for the Pfizer-BioNTech COVID-19 vaccine for adolescents 
12 to 15 years of age, CDC provided updated recommendations to ORR 
regarding the vaccination of UC ages 12 and older. ORR subsequently 
approved the administration of COVID-19 vaccine for age-eligible 
children. Under ORR care, children ages 12 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 90% 
are eligible for vaccination and, as of July 12, 2021, ORR has 
administered at least one dose of the COVID-19 vaccine to 10,124 UC. 
CDC considers these vaccination efforts to be a critical risk reduction 
measure that supports excepting UC from the October Order.
    Although 8,435 UC have tested positive for COVID-19 while at ORR 
shelters during the period of March 24, 2020 to July 8, 2021, 8,081 of 
those UC testing positive have successfully completed medical 
isolation, with few requiring medical treatment. Similarly, 6,590 
COVID-19 cases have been reported among 14 EIS as of July 7, 2021; 
however only 14 (0.5%) of the UC in this group have required 
hospitalization (including two severe

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cases requiring intensive care). These numbers indicate that the risk 
of overburdening the local healthcare systems by 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 including vaccination for 
personnel and eligible UC, there is very low likelihood that processing 
UC in accordance with existing Title 8 procedures will result in undue 
strain on the U.S. healthcare system or healthcare resources. Moreover, 
UC released to a vetted sponsor or placed in a permanent ORR shelter do 
not pose a significant level of risk for COVID-19 spread into the 
community because they are released after having undergone testing, 
quarantine and/or isolation, and vaccination when possible, and their 
sponsors are provided with appropriate medical and public health 
direction.
    CDC thus finds that, at this time,\22\ there is appropriate 
infrastructure in place to protect the children, caregivers, and local 
communities from elevated risk of COVID-19 transmission as a result of 
the introduction of UC, and U.S. healthcare resources are not 
significantly impacted by providing UC necessary care. CDC believes the 
COVID-19-related public health concerns associated with UC introduction 
can be adequately addressed without UC being subject to the October 
Order, thereby permitting the government to better address the 
humanitarian challenges for these children. Based on the foregoing, CDC 
is fully excepting UC from the October Order,\23\ and the February 
Notice is hereby superseded. This Order shall be immediately effective. 
I consulted with DHS and other federal departments as needed before I 
issued this Order and requested that DHS continue to aid in the 
enforcement of this Order because CDC does not have the capability, 
resources, or personnel needed to do so.\24\
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    \22\ This situation could change based on an increased influx of 
UC, changes in COVID-19 infection dynamics among UC, or unforeseen 
reductions in housing capacity.
    \23\ See 86 FR 9942.
    \24\ 42 U.S.C. 268; 42 CFR 71.40(d).
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    This Order is not a rule subject to notice and comment under the 
Administrative Procedure Act (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 Order and a delayed effective date. Given the public 
health emergency caused by COVID-19 and the highly unpredictable nature 
of its transmission and spread, it would be impracticable and contrary 
to public health practices and the public interest to delay the issuing 
and effective date of this Order with respect to UC. In addition, 
because this Order concerns the ongoing discussions with Canada and 
Mexico on how best to control COVID-19 transmission over our shared 
borders, it directly ``involve[s] . . . a . . . foreign affairs 
function of the United States.'' 5 U.S.C. 553(a)(1). Notice and comment 
and a delay in effective date would not be required for that reason as 
well.

Authority

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

    Dated: July 19,2021.
Sherri Berger,
Chief of Staff, Centers for Disease Control and Prevention.
[FR Doc. 2021-15699 Filed 7-20-21; 4:15 pm]
BILLING CODE 4163-18-P