[Federal Register Volume 86, Number 148 (Thursday, August 5, 2021)]
[Notices]
[Pages 42828-42841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16856]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Disease Control and Prevention


Public Health Reassessment and 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 to replace and supersede the Order Suspending the 
Right to Introduce Certain Persons from

[[Page 42829]]

Countries Where a Quarantinable Communicable Disease Exists, issued on 
October 13, 2020 (``October Order''). Following an assessment of the 
current status of the COVID-19 public health emergency and the 
situation in congregate settings where noncitizens seeking to enter the 
United States are processed and held, CDC has determined that an Order 
remains appropriate at this time for all ``covered noncitizens'' as 
defined in the order. Unaccompanied noncitizen children, already 
excepted under a July 16, 2021 order, remain excepted from the order's 
coverage. In addition, CDC is continuing an exception for individuals 
on a case-by-case basis, based on the totality of the circumstances, 
and is incorporating an additional exception for programs approved by 
the U.S. Department of Homeland Security (DHS) that incorporate 
appropriate COVID-19 mitigation protocols as recommended by CDC.

DATES: This Order went into effect August 2, 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: CDC has determined that an Order under 42 
U.S.C. 265 remains 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 during the COVID-19 public health 
emergency. This Order reflects the current, highly dynamic conditions 
regarding COVID-19, including variants of concern and levels of 
vaccination, as well as evolving circumstances specific to the U.S. 
borders. As facts change, CDC may further modify the Order. This Order 
will remain in place until either the expiration of the Secretary of 
HHS' declaration that COVID-19 constitutes a public health emergency, 
or the CDC Director determines that the danger of further introduction 
of COVID-19 into the United States has declined such that continuation 
of the Order is no longer necessary to protect public health, whichever 
occurs first. The circumstances necessitating the Order will be 
reassessed at least every 60 days. This Order continues the suspension 
of the right to introduce ``covered noncitizens,'' \1\ into the United 
States along the U.S. land and adjacent coastal borders. In recognition 
of the specific COVID-19 mitigation measures available in facilities 
providing care for Unaccompanied Noncitizen Children (UC), CDC excepted 
UC from the October Order \2\ on July 16, 2021 (July Exception) and 
continues that exception herein.\3\ In addition, CDC is continuing an 
exception for individuals on a case-by-case basis, based on the 
totality of the circumstances, and is incorporating an additional 
exception for programs approved by the U.S. Department of Homeland 
Security (DHS) that incorporate appropriate COVID-19 mitigation 
protocols as recommended by CDC.
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    \1\ The term ``covered noncitizens'' is 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.
    \2\ 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) 
and 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).
    \3\ 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); see 86 FR 38717 
(July 22, 2021). The July Exception relating to UC is hereby made a 
part of this Order and incorporated by reference as if fully set 
forth herein.
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    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/downloads/CDC-Order-Suspending-Right-to-Introduce-_Final_8-2-21.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 Order Suspending the Right To Introduce 
Certain Persons From Countries Where a Quarantinable Communicable 
Disease Exists

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 
replacing and superseding the Order Suspending the Right to Introduce 
Certain Persons from Countries Where a Quarantinable Communicable 
Disease Exists, issued on October 13, 2020 (October Order). The instant 
Order continues the suspension of the right to introduce ``covered 
noncitizens,'' as defined herein,\4\ into the United States along the 
U.S. land and adjacent coastal borders. In recognition of the specific 
COVID-19 mitigation measures available in facilities providing care for 
Unaccompanied Noncitizen Children (UC), CDC excepted UC from the 
October Order on July 16, 2021 (July Exception) and continues that 
exception herein.\5\ Following an assessment of the current status of 
the COVID-19 public health emergency and the situation in congregate 
settings where noncitizens seeking to enter the United States are 
processed and held, CDC has determined that an Order remains 
appropriate at this time for all other covered noncitizens as described 
herein. As outlined below, CDC is continuing an exception for 
individuals on a case-by-case basis, based on the totality of the 
circumstances, and is incorporating an additional exception for 
programs approved by the U.S. Department of Homeland Security (DHS) 
that incorporate appropriate COVID-19 mitigation protocols as 
recommended by CDC.
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    \4\ See infra Section III.A.
    \5\ 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); see 86 FR 38717 
(July 22, 2021). The July Exception relating to UC is hereby made a 
part of this Order and incorporated by reference as if fully set 
forth herein.
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    CDC has determined that an Order under 42 U.S.C. 265 remains 
necessary

[[Page 42830]]

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 
during the COVID-19 public health emergency. This Order reflects the 
current, highly dynamic conditions regarding COVID-19, including 
variants of concern and levels of vaccination, as well as evolving 
circumstances specific to the U.S. borders. As facts change, CDC may 
further modify the Order. This Order will remain in place until either 
the expiration of the Secretary of HHS' declaration that COVID-19 
constitutes a public health emergency, or the CDC Director determines 
that the danger of further introduction of COVID-19 into the United 
States has declined such that continuation of the Order is no longer 
necessary to protect public health, whichever occurs first. The 
circumstances necessitating the Order will be reassessed at least every 
60 days.

Outline of Reassessment and Order

I. Background
    A. Current Status of COVID-19 Public Health Emergency
    B. Public Health Factors Related to COVID-19
    1. Manner of COVID-19 Transmission
    2. Emerging Variants of the SARS-CoV-2 Virus
    3. Risks of COVID-19 Transmission Specific To Congregate 
Settings
    4. Availability of Testing, Vaccines, and Other Mitigation 
Measures
    5. Impact on U.S. Communities and Healthcare Resources
II. Public Health Reassessment
    A. Immigration Processing and Public Health Impacts
    B. Public Health Assessment of Single Adults and Family Units
    C. Comparison to Unaccompanied Noncitizen Children
    D. Summary of Findings
III. Legal Basis for the Order
IV. Issuance and Implementation of the Order
    A. Covered Noncitizens
    B. Exceptions
    C. APA, Review, and Termination

I. Background

    Coronavirus disease 2019 (COVID-19) is a quarantinable communicable 
disease \6\ 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 an Order on October 13, 2020 (October Order), 
replacing an Order initially issued on March 20, 2020 (March Order),\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 increase 
in risk of the introduction of COVID-19. The October Order applied 
specifically to covered noncitizens who would otherwise be introduced 
into a congregate setting in land or coastal POE or U.S. Border Patrol 
stations at or near the U.S. borders \9\ with Canada and Mexico. On 
February 17, 2021, CDC published a notice announcing the temporary 
exception of unaccompanied noncitizen children (UC) \10\ encountered in 
the United States from the October Order.\11\ The exception of UC from 
the October Order was confirmed with the publication of the July 
Exception.\12\
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    \6\ 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).
    \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), 
and 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\ 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 U.S. 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.
    \10\ As stated in the July Exception, CDC's understanding is 
that UC are 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.
    \11\ Notice of Temporary Exception from Expulsion of 
Unaccompanied Noncitizen Children Pending Forthcoming Public Health 
Determination, 86 FR 9942 (Feb. 17, 2021).
    \12\ Supra note 2.
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    POE and U.S. Border Patrol stations are operated by U.S. Customs 
and Border Protection (CBP), an agency within DHS. The March and 
October Orders were intended to reduce the risk of COVID-19 
introduction, transmission, and spread in POE and U.S. Border Patrol 
stations by significantly reducing the number and density of covered 
noncitizens held in these congregate settings, thereby reducing risks 
to U.S. citizens and residents, DHS/CBP personnel and noncitizens at 
the facilities, and the healthcare systems in local communities 
overall. Because of the congregate nature of these facilities and the 
sustained community transmission of COVID-19, including the highly 
transmissible B.1.617.2 (Delta) variant, in both the United States and 
migrants' countries of origin and transit, at this time, there 
continues to be a high risk of COVID-19 outbreaks in these facilities 
following the introduction of an infected person. Upon reassessment of 
the current situation with respect to the pandemic and the situation at 
the U.S. borders, CDC finds an Order under 42 U.S.C. 265 for Single 
Adults (SA) \13\ and Family Units (FMU) \14\ remains necessary at this 
time, as discussed in detail below. CDC also recognizes the 
availability of testing, vaccines, and other mitigation protocols can 
minimize risk in this area. As the ability of DHS facilities to employ 
mitigation measures to address the COVID-19 public health emergency 
increases, CDC anticipates additional lifting of restrictions.
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    \13\ A single adult (SA) is any noncitizen adult 18 years or 
older who is not an individual in a ``family unit,'' see infra note 
11.
    \14\ 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). Any statistics regarding FMU count the number of 
individuals in a family unit rather than counting the groups.
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A. Current Status of COVID-19 Public Health Emergency

    Since late 2019, SARS-CoV-2, the virus that causes COVID-19, has 
spread throughout the world, resulting in a pandemic. As of July 28, 
2021, there have been over 195 million confirmed cases of COVID-19 
globally, resulting in over 4.1 million deaths.\15\ The United

[[Page 42831]]

States has reported over 34 million cases resulting in over 609,000 
deaths due to the disease \16\ and is currently averaging around 61,976 
new cases of COVID-19 a day as of July 27, 2021 with high community 
transmission.\17\ Although several of the key indicators of 
transmission and spread of COVID-19 in the United States improved 
during the first half of 2021, variants of concern, particularly the 
more transmissible Delta variant, have driven a stark increase in 
COVID-19 cases, hospitalizations, and deaths. COVID-19 cases increased 
approximately 400% between June 19 and July 28, 2021.\18\
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    \15\ Coronavirus disease (COVID-19) pandemic, World Health 
Organization, https://covid19.who.int/ (last visited July 28, 2021).
    \16\ COVID Data Tracker, Centers for Disease Control and 
Prevention, https://covid.cdc.gov/covid-data-tracker/#datatracker-home (last visited July 28, 2021).
    \17\ 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 July 28, 2021).
    \18\ 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: http://dx.doi.org/10.15585/mmwr.mm7030e2.
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    Many countries have begun widespread vaccine administration; 
however, 78 countries continue to experience high or substantial 
incidence rates (>=50 cases per 100,000 people in the last seven days) 
and 123 countries, including the United States, are experiencing an 
increasing incidence of reported new cases.\19\ It is imperative that 
individuals and communities stay vigilant and that vaccination and 
other COVID-19 mitigation efforts are maintained. As the Delta variant 
continues to spread, both the United States and Mexico are experiencing 
high or substantial incidence rates with 137.9 and 68.6 daily cases per 
100,000 persons over a seven-day average, respectively; in Canada, the 
incidence rate is 8.0. The United States saw a 91.0% increase in new 
cases over the past week, Mexico experienced a 30.2% increase in new 
cases. During the same time period, the incidence rate in Canada 
increased by 14.8%.\20\
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    \19\ See Global Trends, Epidemic Curve trajectory 
Classification, WHO, as reported at https://covid.cdc.gov/covid-data-tracker/#global-trends (last visited July 28, 2021).
    \20\ Low/Moderate incidence describes <50 cases per 100,000 
people during the past 7 days. Increasing or Decreasing incidence is 
based on the percentage change in the number of cases reported in 
the past 7 days compared to the 7 days prior to that (Increasing: 
>0% change, Decreasing: <0% change).
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    COVID-19 was first declared a public health emergency in January 
2020 \21\ and the U.S. government and CDC have implemented a number of 
COVID-19 mitigation and response measures since that time. Many of 
these mitigation measures have involved restrictions on international 
travel and migration.\22\ Other measures have focused on recommending 
and enforcing COVID-19 mitigation efforts, including physical 
distancing and mask-wearing.\23\ Recent concerns regarding the spread 
of the Delta variant prompted CDC to release updated guidance calling 
for vaccinated persons to wear a mask indoors in public when in an area 
of substantial or high transmission.\24\ Furthermore, CDC recommends 
that all individuals, including those fully vaccinated, continue to 
wear a well-fitted face mask in correctional and detention 
facilities.\25\
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    \21\ Determination that a Public Health Emergency Exists, U.S. 
Department of Health and Human Services (Jan. 31, 2020), https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx 
(last visited July 21, 2021). The public health emergency 
determination has been subsequently renewed at 90-day intervals, 
most recently on July 28, 2021. See https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVID-19July2021.aspx (last visited 
July 28, 2021).
    \22\ The President issued proclamations suspending entry into 
the United States of immigrants or nonimmigrants who were physically 
present within a number of countries during the 14-day period 
preceding their entry or attempted entry into the U.S. See 
Proclamation 9984 (Jan. 31, 2020); Proclamation 9992 (Feb. 28, 
2020); Proclamation 10143 (Jan. 25, 2021); and Proclamation 10199 
(Apr. 30, 2021). Since March 2020, Canada and Mexico have joined 
with the U.S. to restrict non-essential travel along land borders to 
prevent the introduction and spread of the virus that causes COVID-
19; these restrictions are in place until at least August 21, 2021. 
Notification of Temporary Travel Restrictions Applicable to Land 
Ports of Entry and Ferries Service Between the U.S. and Canada, 86 
FR 38556 (July 22, 2021); Notification of Temporary Travel 
Restrictions Applicable to Land Ports of Entry and Ferries Service 
Between the U.S. and Mexico, 86 FR 38554 (July 22, 2021). CDC has 
also issued orders to mitigate risk of further introducing and 
spreading SARS CoV-2 and its variants into the United States. See 
Framework for Conditional Sailing and Initial Phase COVID-19 Testing 
Requirements for Protection of Crew, 85 FR 70153 (Nov. 4, 2020) 
(outlining the process for the phased resumption of cruise ship 
passenger operations); Requirement for Negative Pre-Departure COVID-
19 Test Result or Documentation of Recovery from COVID-19 for all 
Airline or Other Aircraft Passengers Arriving into the U.S. from Any 
Foreign Country, 86 FR 7387 (Jan. 28, 2021); and COVID-19 Travel 
Recommendations by Destination, Centers for Disease Control and 
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/travelers/map-and-travel-notices.html#travel-1 (last updated July 26, 2021) 
(COVID-19-related travel recommendations, including 62 Level 4 
Travel Health Notices for countries with very high COVID-19 rates).
    \23\ CDC's Order requiring the wearing of face masks by 
travelers while on a conveyance entering, traveling within, or 
departing the United States and in U.S. transportation hubs remains 
in place for all travelers at indoor settings on public 
transportation conveyances and at transportation hubs, regardless of 
vaccination. Requirement for Persons to Wear Masks While on 
Conveyances and at Transportation Hubs, 86 FR 8025 (Feb. 3, 2021). 
See Requirement for Face Masks on Public Transportation Conveyances 
and at Transportation Hubs, Centers for Disease Control and 
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/travelers/face-masks-public-transportation.html (last updated June 10, 2021).
    \24\ Supra note 15 (CDC also recommends fully vaccinated persons 
consider wearing a mask regardless of transmission level if they or 
someone in their household is immunocompromised or at increased risk 
for severe disease, or if someone in their household is unvaccinated 
(including children currently ineligible for vaccination)); see also 
infra page 11, section 5 (discussion of ``high'' and ``substantial 
transmission'').
    \25\ Interim Public Health Recommendations for Fully Vaccinated 
People, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html (last updated May 28, 2021).
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B. Public Health Factors Related to COVID-19

    As directed by Executive Order,\26\ CDC conducted a comprehensive 
reassessment of the October Order to determine whether the suspension 
of the right to introduce certain persons into the United States 
remains necessary in light of the current circumstances, including the 
evolving understanding of the epidemiology of COVID-19 variants and 
available mitigation measures including testing and vaccination.\27\ In 
conducting this reassessment, CDC examined a number of public health 
factors, and evaluated how these factors impact POE and U.S. Border 
Patrol stations and the personnel and noncitizens in those facilities. 
CDC also scrutinized whether the potential impacts varied by category 
of noncitizen: SA, FMU, and UC. In carrying out its reassessment, CDC 
evaluated the following public health factors: (1) The manner of COVID-
19 transmission, including asymptomatic and pre-symptomatic 
transmission; (2) the emerging variants of the SARS-CoV-2 virus; (3) 
the risks specific to the type of facility or congregate setting; (4) 
the availability of testing and vaccines and the applicability of other 
mitigation efforts; and (5) the impact on U.S. communities and 
healthcare resources. CDC views this public health reassessment as 
setting forth a roadmap toward the safe resumption of normal processing 
of arriving noncitizens, taking into account COVID-19 concerns and 
immigration facilities' ability to implement mitigation measures.
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    \26\ Exec. Order 14010, ``Creating a Comprehensive Regional 
Framework To Address the Causes of Migration, To Manage Migration 
Throughout North and Central America, and To Provide Safe and 
Orderly Processing of Asylum Seekers at the United States Border,'' 
86 FR 8267 (Feb. 2, 2021).
    \27\ CDC's reassessment of the public health situation with 
respect to covered noncitizens and border facilities relies upon 
information and data provided by DHS, CBP, and HHS' Office of 
Refugee Resettlement, including information regarding those 
entities' policies and practices.

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[[Page 42832]]

1. Manner of COVID-19 Transmission
    SARS-CoV-2, the virus that causes COVID-19, spreads mainly from 
person-to-person through respiratory fluids released during exhalation, 
such as when an infected person coughs, sneezes, or talks. Exposure to 
these respiratory fluids occurs in three principal ways: (1) Inhalation 
of very fine respiratory droplets and aerosol particles, (2) deposition 
of respiratory droplets and particles on exposed mucous membranes in 
the mouth, nose, or eye by direct splashes and sprays, and (3) touching 
mucous membranes with hands that have been soiled either directly by 
virus-containing respiratory fluids or indirectly by touching surfaces 
with virus on them.\28\ Spread is more likely when people are in close 
contact with one another (within about 6 feet), especially in crowded 
or poorly ventilated indoor settings. Unvaccinated persons with 
asymptomatic and pre-symptomatic infection are significant contributors 
to community SARS-CoV-2 transmission and occurrence of COVID-19.\29\ 
Asymptomatic cases are currently believed to represent roughly 30% of 
all COVID-19 infections and the infectiousness of asymptomatic 
individuals is believed to be about 75% of the infectiousness of 
symptomatic individuals. CDC's current best estimate is that 50% of 
infections are transmitted prior to symptom onset (pre-symptomatic 
transmission).\30\ Although rare, as discussed below, breakthrough 
infections may occur in vaccinated individuals. Due to the variety of 
source of spread--transmission by asymptomatic, pre-symptomatic, 
symptomatic, and vaccinated individuals--testing is critical to 
identify those infected with COVID-19.
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    \28\ Scientific Brief: SARS-CoV-2 Transmission, Centers for 
Disease Control and Prevention (May 7, 2021), https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/sars-cov-2-transmission.html; Science Brief: SARS-CoV-2 and Surface (Fomite) 
Transmission for Indoor Community Environments, Centers for Disease 
Control and Prevention (Apr. 5, 2021), https://www.cdc.gov/coronavirus/2019-ncov/more/science-and-research/surface-transmission.html.
    \29\ Moghadas SM, Fitzpatrick MC, Sah P, et al. The implications 
of silent transmission for the control of COVID-19 outbreaks. Proc 
Natl Acad Sci U S A. 2020;117(30):17513-17515.10.1073/
pnas.2008373117, available at https://www.ncbi.nlm.nih.gov/pubmed/32632012; Johansson MA, Quandelacy TM, Kada S, et al. SARS-CoV-2 
Transmission From People Without COVID-19 Symptoms. Johansson MA, et 
al. JAMA Netw Open. 2021 January4;4(1):e2035057. doi: 10.1001/
jamanetworkopen.2020.35057.
    \30\ COVID-19 Pandemic Planning Scenarios, Centers for Disease 
Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/planning-scenarios.html (last visited July 28, 2021).
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    Among those who are not vaccinated, serious COVID-19 illness 
necessitating treatment occurs with greater frequency in older adults 
and those with certain pre-existing conditions.\31\ Although children 
can be infected with SARS-CoV-2, get sick from COVID-19, and spread the 
virus to others, when compared with adults, children and adolescents 
who have COVID-19 are more commonly asymptomatic or have mild, non-
specific symptoms. Children are less likely to develop severe illness 
or die from COVID-19.\32\ They typically present with mild symptoms, if 
any, and have a good prognosis, recovering within one to two weeks 
after disease onset.\33\
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    \31\ People at Increased Risk and Other People Who Need to Take 
Extra Precautions, Centers for Disease Control and Prevention, 
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/index.html (last updated Apr. 20, 2021).
    \32\ Science Brief: Transmission of SARS-CoV-2 in K-12 Schools 
and Early Care and Education Programs--Updated, Centers for Disease 
Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/transmission_k_12_schools.html (last updated 
July 9, 2021).
    \33\ See Leeb RT, Price S, Sliwa S, et al. COVID-19 Trends Among 
School-Aged Children--United States, March 1-September 19, 2020. 
MMWR Morb Mortal Wkly Rep 2020;69:1410-1415. DOI: http://dx.doi.org/10.15585/mmwr.mm6939e2; Leidman E, Duca LM, Omura JD, Proia K, 
Stephens JW, Sauber-Schatz EK. COVID-19 Trends Among Persons Aged 0-
24 Years--United States, March 1-December 12, 2020. MMWR Morb Mortal 
Wkly Rep 2021;70:88-94. DOI: http://dx.doi.org/10.15585/mmwr.mm7003e1; Rankin DA, Talj R, Howard LM, Halasa NB. 
Epidemiologic trends and characteristics of SARS-CoV-2 infections 
among children in the United States. Curr Opin Pediatr. 2021 Feb 
1;33(1):114-121. doi: 10.1097/MOP.0000000000000971. PMID: 33278112; 
PMCID: PMC8011299; and Castagnoli R, Votto M, Licari A, et al. 
Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2) 
Infection in Children and Adolescents: A Systematic Review. JAMA 
Pediatr. 2020;174(9):882-889. doi:10.1001/jamapediatrics.2020.1467.
---------------------------------------------------------------------------

2. Emerging Variants of the SARS-CoV-2 Virus
    Like all viruses, SARS-CoV-2 constantly changes through mutation as 
it circulates, resulting in new virus variants over time.\34\ Unchecked 
transmission of SARS-CoV-2 may result in increased viral mutations and 
the emergence of new variants. New variants of SARS-CoV-2 have emerged 
globally,\35\ several of which have been identified as variants of 
concern,\36\ including the Alpha, Beta, Gamma, and Delta variants. 
These variants of concern have evidence of an increase in 
transmissibility and more severe disease, which may lead to higher 
incidence, hospitalization, and death rates among exposed persons.\37\ 
Furthermore, findings suggest variants may reduce levels of 
neutralization by antibodies generated during previous infection or 
vaccination, resulting in reduced effectiveness of treatments or 
vaccines, or increased diagnostic detection failures.\38\ The ultimate 
concern is a variant that substantially decreases the effectiveness of 
available vaccines against severe or deadly disease.
---------------------------------------------------------------------------

    \34\ About Variants of the Virus that Causes COVID-19, Centers 
for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/transmission/variant.html (last updated Apr. 2, 2021).
    \35\ Abdool Karim SS, de Oliveira T. New SARS-CoV-2 Variants--
Clinical, Public Health, and Vaccine Implications [published online 
ahead of print, 2021 Mar 24]. N Engl J Med. 2021;10.1056/
NEJMc2100362. doi:10.1056/NEJMc2100362.
    \36\ Id.
    \37\ Dougherty K, Mannell M, Naqvi O, Matson D, Stone J. SARS-
CoV-2 B.1.617.2 (Delta) Variant COVID-19 Outbreak Associated with a 
Gymnastics Facility--Oklahoma, April-May 2021. MMWR Morb Mortal Wkly 
Rep 2021;70:1004-1007. DOI: http://dx.doi.org/10.15585/mmwr.mm7028e2 
(describing a B.1.617.2 (Delta) Variant COVID-19 outbreak associated 
with a gymnastics facility and finding that the Delta variant is 
highly transmissible in indoor sports settings and households, which 
might lead to increased incidence rates).
    \38\ SARS-CoV-2 Variant Classifications and Definitions, Centers 
for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/variants/variant-info.html#Concern (last updated June 29, 
2021).
---------------------------------------------------------------------------

    Currently, the Delta variant is the predominant SARS-CoV-2 strain 
circulating in the United States, accounting for over 82% of cases as 
of July 17, 2021.\39\ Of critical significance for this Order, the 
Delta variant has demonstrated increased levels of transmissibility 
among unvaccinated persons and might increase the risk of vaccine 
breakthrough infections in the absence of other mitigation 
strategies.\40\ For the unvaccinated, Delta remains a formidable threat 
and rates of infection of the Delta variant are growing more rapidly in 
U.S. counties with lower vaccination rates.\41\ Available evidence 
suggests all three vaccines currently authorized for emergency use in 
the United States provide significant protection against variants 
circulating in the United States.\42\ However, a small

[[Page 42833]]

proportion of people who are fully vaccinated may become infected with 
the Delta variant (known as breakthrough infection); emerging evidence 
suggests that fully vaccinated persons who do become infected with the 
Delta variant are at risk for transmitting it to others.\43\
---------------------------------------------------------------------------

    \39\ Variant Proportions, Centers for Disease Control and 
Prevention, https://covid.cdc.gov/covid-data-tracker/#variant-proportions (citing data for the two-week interval ending July 17, 
2021).
    \40\ About Variants of the Virus that Causes COVID-19, Centers 
for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html (last updated June 28, 2021).
    \41\ COVID Data Tracker Weekly Review, Interpretive Summary for 
July 23, 2021, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html 
(attributing rising numbers of COVID-19 cases in nearly 90% of U.S. 
jurisdictions to the rapid spread of the Delta variant).
    \42\ Science Brief: COVID-19 Vaccines and Vaccination, Centers 
for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/fully-vaccinated-people.html (last 
updated May 27, 2021). Other vaccines, particularly the one 
manufactured by AstraZeneca, show reduced efficacy against infection 
with certain variants but may still protect against severe disease; 
at the time of the issuance of this Order, the FDA has not 
authorized the AstraZeneca COVID-19 vaccine for use in the United 
States.
    \43\ Supra note 15.
---------------------------------------------------------------------------

    CDC continues to monitor the situation and may adapt 
recommendations based on the epidemiology of variants of concern. Given 
the transmissibility of variant strains and the continued emergence of 
new variants, ongoing monitoring of vaccine effectiveness is needed to 
identify mutations that could render vaccines most commonly used in the 
United States less effective against more transmissible variants.\44\
---------------------------------------------------------------------------

    \44\ See About Variants of the Virus that Causes COVID-19, supra 
note 37.
---------------------------------------------------------------------------

3. Risks of COVID-19 Transmission Specific to Congregate Settings
    Given the manner of transmission, including asymptomatic or pre-
symptomatic transmission, the risk of spreading COVID-19 is 
particularly pronounced among those who are unvaccinated, partially 
vaccinated, or vaccinated with less effective vaccines.\45\ This risk 
is acutely present in congregate settings, where a number of people 
reside, meet, or gather in close proximity for either a limited or 
extended period of time.\46\ Facilities must often carefully weigh the 
risks of increased transmission not only in the facilities, but also in 
the local community, due to secondary transmission. These congregate 
facilities must also consider individual facility and community 
characteristics (e.g., ability to maintain physical distancing, 
compliance with universal mask-use policies, ability to properly 
ventilate, proportion of staff and occupants vaccinated, numbers of 
those who are at increased risk for severe illness from COVID-19, the 
availability of resources for broad-based vaccination, testing, and 
outbreak response, and level of community transmission).\47\
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    \45\ Vaccines with effectiveness of less than 50% against 
wildtype strains of COVID-19 are considered less effective.
    \46\ Notably, COVID-19 has disproportionately affected persons 
in congregate settings and high-density workplaces. Studies 
conducted prior to the availability of vaccines showed that a single 
introduction of SARS-CoV-2 into a facility can result in a 
widespread outbreak. Lehnertz NB, Wang X, Garfin J, Taylor J, 
Zipprich J, VonBank B, et al. Transmission Dynamics of Severe Acute 
Respiratory Syndrome Coronavirus 2 in High-Density Settings, 
Minnesota, USA, March-June 2020. Emerg Infect Dis. 2021;27(8):2052-
2063. https://doi.org/10.3201/eid2708.204838. Whole genome 
sequencing of samples taken following an outbreak at a correctional 
facility demonstrated that 92.2% of the samples taken from patients 
were genetically related, indicating that a single case had likely 
led to the infection of 48 individuals. Similarly, phylogenetic 
analysis established that 29.6% of cases from an outbreak at a 
second correctional facility were closely related and genetically 
identical, indicating that the index case had led to the infection 
of approximately 60 others.
    \47\ See Recommendations for Quarantine Duration in Correctional 
Facilities, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/quarantine-duration-correctional-facilities.html (last visited July 28, 2021).
---------------------------------------------------------------------------

    Congregate settings, particularly detention facilities with limited 
ability to provide adequate physical distancing and cohorting, have a 
heightened risk of COVID-19 outbreaks.\48\ CDC has long recognized the 
risks specific to such settings, including homeless shelters, detention 
centers, schools, and workplaces and has provided a number of guidance 
documents to address the concerns in such spaces. Specifically, CDC 
developed interim guidance for law enforcement agencies that have 
custodial authority for detained populations, including civil and pre-
trial detention settings. Among the recommendations are physical 
distancing strategies, isolation of individuals with confirmed or 
suspected COVID-19, quarantine of close contacts, cohorting of 
individuals when space is limited, testing, healthcare evaluations for 
individuals with suspected COVID-19, clinical care as needed for 
individuals with confirmed or suspected COVID-19, and addressing 
specific considerations for people who are at increased risk for severe 
illness.\49\
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    \48\ Since March 31, 2020, the U.S. Federal Bureau of Prisons 
and state departments of corrections have together recorded 416,854 
COVID-19 cases among residents and 108,945 cases among staff in 
correctional and detention facilities, resulting in 2,911 deaths. 
Confirmed COVID-19 Cases and Deaths in U.S. Correctional and 
Detention Facilities by State, Centers for Disease Control and 
Prevention, https://covid.cdc.gov/covid-data-tracker/#correctional-facilities (last visited July 28, 2021).
    \49\ See Guidance for Correctional & Detention Facilities, 
Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html (last updated June 9, 2021).
---------------------------------------------------------------------------

    Vaccine coverage in congregate settings varies and infection risk 
is greater where there is sustained community transmission.\50\ In 
light of this, CDC strongly recommends vaccination against COVID-19 for 
everyone who is eligible, including people who are incarcerated or 
detained and staff at correctional and detention facilities.\51\ CDC is 
discussing additional guidance with DHS, highlighting the key metrics 
to consider before modifying COVID-19 prevention and mitigation 
measures in facilities that hold or detain migrants.\52\
---------------------------------------------------------------------------

    \50\ Falk A, Benda A, Falk P, Steffen S, Wallace Z, H[oslash]eg 
TB. COVID-19 Cases and Transmission in 17 K-12 Schools--Wood County, 
Wisconsin, August 31-November 29, 2020. MMWR Morb Mortal Wkly Rep 
2021;70:136-140. DOI: http://dx.doi.org/10.15585/mmwr.mm7004e3. See 
also Link-Gelles R, DellaGrotta AL, Molina C, et al. Limited 
Secondary Transmission of SARS-CoV-2 in Child Care Programs--Rhode 
Island, June 1-July 31, 2020. MMWR Morb Mortal Wkly Rep 
2020;69:1170-1172. DOI: http://dx.doi.org/10.15585/mmwr.mm6934e2.
    \51\ COVID-19 Vaccine FAQs in Correctional and Detention 
Centers, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/vaccine-faqs.html (last updated June 1, 2021).
    \52\ See CDC memo to DHS ``Considerations for modifying COVID-19 
prevention and mitigation measures in Department of Homeland 
Security migrant holding facilities in response to declining 
transmission,'' Centers for Disease Control and Prevention (last 
updated June 11, 2021).
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4. Availability of Testing, Vaccines, and Other Mitigation Measures
    The potential for asymptomatic and pre-symptomatic transmission 
makes testing an essential part of COVID-19 mitigation protocols. With 
the additional testing capacity available through antigen tests, rapid 
testing can be implemented to identify infected persons so they can be 
isolated until they no longer pose a risk of spreading infections and 
their close contacts can be identified and quarantined.\53\ Testing is 
especially important in congregate settings where even a single 
asymptomatic case can trigger an outbreak that may quickly exceed a 
facility's capacity to isolate and quarantine residents. Furthermore, 
if personnel are infected or exposed, the number of available staff 
members may be reduced, further stressing facility operations. Testing 
facility residents and personnel can help facilitate prompt mitigation 
actions.
---------------------------------------------------------------------------

    \53\ See COVID-19 Testing and Diagnostics Working Group (TDWG). 
U.S. Department of Health and Human Services, https://www.hhs.gov/coronavirus/testing/testing-diagnostics-working-group/index.html 
(last visited July 28, 2021) (defining the role of the COVID-19 
TDWG, which develops testing-related guidance and provides targeted 
investments to expand the available testing supply and maximize 
testing capacity).
---------------------------------------------------------------------------

    COVID-19 vaccines are now widely available in the United States, 
and vaccination is recommended for all people 12 years of age and up. 
Three COVID-19 vaccines are currently authorized by the U.S. Food and 
Drug Administration (FDA) for emergency use: Two mRNA vaccines 
(produced by Pfizer-BioNTech and Moderna) and one viral vector vaccine 
(produced by

[[Page 42834]]

Johnson & Johnson/Janssen), each of which has been determined to be 
safe and effective against COVID-19. As of July 28, 2021, over 163 
million people in the United States (57.6% of the population 12 years 
or older) have been fully vaccinated and over 189 million people in the 
United States (66.8% of the population 12 years or older) have received 
at least one dose.\54\ After substantial vaccine uptake in the first 
months of 2021, however, vaccination uptake has plateaued, particularly 
in those under the age of 65 years.\55\ The combination of reduced 
vaccine uptake and the extreme transmissibility of the Delta variant 
has resulted in rising numbers of COVID-19 cases, primarily and 
disproportionately affecting the unvaccinated population.
---------------------------------------------------------------------------

    \54\ COVID-19 Vaccinations in the United States, Centers for 
Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#vaccinations (last updated July 28, 2021).
    \55\ Diesel J, Sterrett N, Dasgupta S, et al. COVID-19 
Vaccination Coverage Among Adults--United States, December 14, 2020-
May 22, 2021. MMWR Morb Mortal Wkly Rep 2021;70: 922-927. DOI: 
http://dx.doi.org/10.15585/mmwr.mm7025e1. The study found that the 
lowest vaccination coverage and the intent to be vaccinated among 
adults aged 18-24 years, non-Hispanic Black adults, and individuals 
with less education, no insurance, and lower household incomes. 
Concerns about vaccine safety and effectiveness were commonly cited 
barriers to vaccination. See also supra note 15 (finding that 
vaccine uptake has slowed nationally with wide variation in coverage 
by state (range = 33.9%-67.2%) and by county (range = 8.8%-89.0%)).
---------------------------------------------------------------------------

    The availability of COVID-19 vaccines is rising globally but still 
dwarfed by the rates of vaccination in the United States and a handful 
of other countries.\56\ Countries of origin for the majority of 
incoming covered noncitizens have markedly lower vaccination rates.\57\ 
Given this, the increased movement of typically unvaccinated covered 
noncitizens into the United States presents a heightened risk of 
morbidity and mortality to this population due to the congregate 
holding facilities at the border and the practical constraints on 
implementation of mitigation measures in such facilities. Outbreaks in 
these settings increase the serious danger of further introduction, 
transmission, and spread of COVID-19 and variants into the country.
---------------------------------------------------------------------------

    \56\ See ``PAHO Director calls for fair and broad access to 
COVID-19 vaccines for Latin America and the Caribbean,'' Pan 
American Health Organization, https://www.paho.org/en/news/7-7-2021-paho-director-calls-fair-and-broad-access-covid-19-vaccines-latin-america-and (July 7, 2021) (noting the discrepancies in vaccine 
availability coverage among North, Central, and South American 
countries).
    \57\ Thus far in 2021, Ecuador, El Salvador, Guatemala, 
Honduras, and Mexico constitute the top five countries of origin for 
covered noncitizens. Rates of vaccination for each country are as 
follows: Ecuador: 11% fully vaccinated, 30% only partly vaccinated; 
El Salvador: 22% fully vaccinated, 17% only partly vaccinated; 
Guatemala: 1.6% fully vaccinated, 5.3% only partly vaccinated; 
Honduras: 1.8% fully vaccinated, 12% only partly vaccinated; Mexico: 
18% fully vaccinated, 14% only partly vaccinated, https://ourworldindata.org/covid-vaccinations (last visited July 24, 2021).
---------------------------------------------------------------------------

    CDC is aware of a rising number of breakthrough SARS-CoV-2 
infections \58\ in vaccinated individuals; even without variants of 
concern, more vaccine breakthroughs are to be expected due to the 
rising number of vaccinated individuals. While the vaccines currently 
authorized by the FDA are successful in mitigating severe illness from 
the highly transmissible Delta variant, infection and even mild to 
moderate illness has been documented in a small percentage of 
vaccinated persons.\59\ The emergence of these more transmissible 
variants increases the urgency to expand vaccination coverage for 
everyone and especially those in densely populated congregate 
settings.\60\ Public health agencies and other organizations must 
collaboratively monitor the status of the pandemic in their 
communities. As widespread vaccination efforts continue, ongoing use of 
the full panoply of mitigation measures is nevertheless especially 
important in congregate settings and remains key to slowing 
introduction, transmission, and spread of COVID-19.
---------------------------------------------------------------------------

    \58\ A vaccine breakthrough infection is defined as the 
detection of SARS-CoV-2 RNA or antigen in a respiratory specimen 
collected from a person >=14 days after receipt of all recommended 
doses of an FDA-authorized COVID-19 vaccine. COVID-19 Vaccine 
Breakthrough Infections Reported to CDC--United States, January 1-
April 30, 2021. MMWR Morb Mortal Wkly Rep 2021;70:792-793. DOI: 
http://dx.doi.org/10.15585/mmwr.mm7021e3.
    \59\ COVID-19 Vaccine Breakthrough Case Investigation and 
Reporting, Centers for Disease Control and Prevention, https://www.cdc.gov/vaccines/covid-19/health-departments/breakthrough-cases.html (last updated July 15, 2021).
    \60\ Supra at note 55.
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5. Impact on U.S. Communities and Healthcare Resources
    COVID-19 cases are on the rise in nearly 90% of U.S. jurisdictions, 
and multiple outbreaks are occurring in parts of the country that have 
low vaccination coverage. A person's risk for SARS-CoV-2 infection is 
directly related to the risk for exposure to infectious persons, which 
is largely determined by the extent of SARS-CoV-2 circulation in the 
surrounding community. Emerging evidence regarding the Delta variant 
finds that it is more than two times as transmissible as the original 
strains of SARS-CoV-2 circulating at the start of the pandemic. In 
light of this, CDC recommends assessing the level of community 
transmission using, at a minimum, two metrics: New COVID-19 cases per 
100,000 persons in the last 7 days and percentage of positive SARS-CoV-
2 diagnostic nucleic acid amplification tests in the last 7 days. For 
each of these metrics, CDC classifies transmission values as low, 
moderate, substantial, or high. At the time of this Order's issuance, 
over 70% of the U.S. counties along the U.S.-Mexico border were 
classified as experiencing high or substantial levels of community 
transmission.\61\ In areas of substantial or high transmission, CDC 
recommends community leaders encourage vaccination and universal 
masking in indoor public spaces in addition to other layered prevention 
strategies to prevent further spread.
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    \61\ Of the 22 U.S. counties along the U.S.-Mexico border, 13 
counties are experiencing high levels of community transmission (San 
Diego County, CA; Hidalgo County, NM; Presidio County, TX; Brewster 
County, TX; Terrell County, TX; Val Verde County, TX; Kinney County, 
TX; Maverick County, TX; Webb County, TX; Zapata County, TX; Starr 
County, TX; Hidalgo County, TX; and Cameron County, TX) and four 
counties are experiencing substantial levels of community 
transmission (Imperial County, CA; Pima County, AZ; Santa Cruz 
County, AZ; and Luna County, NM;). Five counties are experiencing 
moderate levels of community transmission (Yuma County, AZ; Cochise 
County, AZ; Dona Ana County, NM; El Paso County, TX; and Hudspeth 
County, TX). No counties along the border are experiencing low 
levels of community transmission. COVID-19 Integrated County View, 
Centers for Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#county-view (last updated July 28, 2021).
---------------------------------------------------------------------------

    Between March and June 2021, rates of hospitalization due to COVID-
19 decreased dramatically, easing long endured pressures on the U.S. 
healthcare system. However, in July 2021, with the rise of the Delta 
variant, the seven-day average for new hospital admissions in the 
United States increased 35.8% over the prior seven-day period.\62\ 
Rates of hospitalization are rising most sharply in areas with low 
vaccination coverage.\63\ CDC recommends continuous monitoring of the 
availability of staffed inpatient and intensive care unit beds, as data 
on usage of clinical care resources to manage patients with COVID-19 
reflect underlying community disease incidence. This information can 
signal when urgent implementation of layered prevention strategies 
might be necessary to prevent overloading local and regional health 
care systems. Strains on

[[Page 42835]]

critical care capacity can increase COVID-19 mortality while decreasing 
the availability and use of health care resources for non-COVID-19 
related medical care.\64\ Increased hospital admissions are forecasted 
in the coming weeks as the Delta variant continues to predominate.\65\
---------------------------------------------------------------------------

    \62\ COVID Data Tracker Weekly Review, Interpretive Summary for 
July 16, 2021, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/07162021.html (last visited July 28, 2021).
    \63\ COVID Data Tracker Weekly Review, Interpretive Summary for 
July 9, 2021, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/07092021.html.
    \64\ Supra note 15.
    \65\ COVID-19 Forecasts: Hospitalizations, Centers for Disease 
Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/hospitalizations-forecasts.html (last updated 
July 21, 2021).
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    The rapid spread of the highly transmissible Delta variant is 
leading to worrisome trends in healthcare and community resources. 
Signs of stress are already present in the southern regions of the 
United States.\66\ Ultimately, the flow of migration directly impacts 
not only border communities and regions, but also destination 
communities and the healthcare resources of both. In light of this, the 
totality of the U.S. community transmission, health system capacity, 
and public health capacity, as well as local capacity to implement 
mitigation protocols, are important considerations when reassessing the 
need for this Order.\67\
---------------------------------------------------------------------------

    \66\ See COVID Data Tracker: New Hospital Admissions, https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions (last 
updated July 22, 2021) (showing HHS Regions 4, 6, and 9, 
encompassing all southern states, experiencing increased rates of 
new admissions of COVID-19-confirmed patients).
    \67\ See Implementation of Mitigation Strategies for Communities 
with Local COVID-19 Transmission, Centers for Disease Control and 
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/community-mitigation.html (last visited May 6, 2021).
---------------------------------------------------------------------------

II. Public Health Reassessment

A. Immigration Processing and Public Health Impacts

    Noncitizens arriving in the United States who lack proper travel 
documents, whose entry is otherwise contrary to law, or who are 
apprehended at or near the border seeking to unlawfully enter the 
United States between POE are normally subject to initial immigration 
processing by CBP in POE facilities and U.S. Border Patrol stations. 
Absent CDC's issuance of an order under 42 U.S.C. 265 directing 
otherwise, immigration processing takes place pursuant to Title 8 of 
the U.S. Code. Although some number of inadmissible noncitizens present 
at POE, the vast majority are encountered by CBP between POE.\68\ Upon 
such encounters, Border Patrol agents conduct an initial field 
assessment and transport the individuals to a CBP facility for intake 
processing.\69\
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    \68\ Fiscal year to date, 96% (1,076,242 of 1,119,204) of 
encounters of noncitizens occurred between POE.
    \69\ CBP facilities include POE, U.S. Border Patrol stations, 
and facilities managed by the Office of Field Operations.
---------------------------------------------------------------------------

    CBP facilities are designed to provide this short-term intake 
processing and are thus space-constrained.\70\ While undergoing intake 
processing under Title 8 at CBP facilities, noncitizens are regularly 
held in close proximity to one another anywhere from several hours to 
several days. Depending on the outcome of intake processing, a 
noncitizen is generally referred to the DHS' Immigration and Customs 
Enforcement (ICE), where they are often subject to longer-term 
detention.71 72
---------------------------------------------------------------------------

    \70\ CBP facilities were designed for the immediate processing 
of persons and are statutorily designated as short-term (less than 
72 hours) holding facilities. 6 U.S.C. 211(m).
    \71\ FMU transferred to ICE custody are generally held at a 
Family Staging Center (FSC). Following intake processing, UC are 
referred to the Office of Refugee Resettlement (ORR) within HHS' 
Administration for Children and Families (ACF) for care.
    \72\ While CBP policies regarding transfer and release decisions 
are the same across the Southwest Border, implementation varies 
based on local CBP capacity, and ICE capacity.
---------------------------------------------------------------------------

    Compared to CBP facilities, ICE facilities have space allocations 
similar to traditional long-term correctional facilities. Still, during 
migratory surges, capacity constraints hinder CBP and ICE operations 
and facilities alike. If downstream ICE operations and facilities reach 
capacity limits, ICE may be unable to take custody of additional 
noncitizens in a timely manner. When this movement of noncitizens from 
CBP to ICE custody is impeded or delayed, noncitizens may remain in 
CBP's densely populated, short-term holding facilities for much longer 
periods. Of note, the United States is currently experiencing such a 
migratory surge of noncitizens attempting to enter the country at and 
between POE at the southern border.\73\ DHS has already recorded more 
encounters this fiscal year to date than the approximate 977,000 
encounters in the whole of FY 2019.\74\
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    \73\ According to data from DHS, encounters at the southern 
border have been rising since April 2020 due to several factors, 
including ongoing violence, insecurity, and famine in the Northern 
Triangle countries of Central America (El Salvador, Honduras, 
Guatemala).
    \74\ Southwest Land Border Encounters, U.S. Customs and Border 
Protection, available at https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last visited July 28, 2021).
---------------------------------------------------------------------------

    CBP has implemented a variety of mitigation efforts to prevent the 
spread of COVID-19 in POE and U.S. Border Patrol facilities based on 
the infection prevention strategy referred to as the hierarchy of 
controls.\75\ CBP has invested in engineering upgrades, such as 
installing plexiglass dividers in facilities where physical distancing 
is not possible and enhancing ventilation systems. All CBP facilities 
adhere to CDC guidance for cleaning and disinfection. Surgical masks 
are provided to all persons in custody and are changed at least daily 
and if or when they become wet or soiled. Personal protective equipment 
(PPE) and guidance are regularly provided to CBP personnel. Recognizing 
the value of vaccination, CBP is encouraging vaccination among its 
workforce. All noncitizens brought into CBP custody are subject to 
health intake interviews, including COVID-19 screening questions and 
temperature checks. If a noncitizen in custody displays symptoms of 
COVID-19 or has a known exposure, CBP facilitates referral to the local 
healthcare system for testing. Finally, in the event CBP decides to 
release a noncitizen prior to removal proceedings, the agency has 
coordinated with local governments and non-governmental organizations 
to arrange COVID-19 testing at release.\76\
---------------------------------------------------------------------------

    \75\ Hierarchy of Controls, Centers for Disease Control and 
Prevention, available at https://www.cdc.gov/niosh/topics/hierarchy/default.html (last visited July 6, 2021). 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).
    \76\ This is also true of ICE facilities.
---------------------------------------------------------------------------

    In addition to these mitigation measures, enhanced physical 
distancing and cohorting remain key to preventing transmission and 
spread of COVID-19, particularly in congregate settings. To address 
this, as the pandemic emerged, CBP greatly reduced capacity in their 
holding facilities. While U.S. Border Patrol facilities along the 
southern border currently have a non-pandemic total holding capacity of 
14,553 individuals, implementation of mitigation measures led to a 50-
75% reduction in holding capacity depending on the design of a given 
facility, resulting in COVID-constrained holding capacity of 4,706.\77\ 
However, the current surge has caused CBP to exceed COVID-constrained 
capacity and routinely exceed its non-COVID capacity.\78\ From July 3 
to July 24, 2021,

[[Page 42836]]

CBP encountered an average of 3,573 SA and 2,479 FMU daily, over a 21-
day period, even with the CDC Order in place. This extreme population 
density and the resulting increased time spent in custody by 
noncitizens presents a serious risk of increased COVID-19 transmission 
in CBP facilities.
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    \77\ Similarly, the operational holding capacity for SA in ICE 
facilities was reduced by 30% from a regular total capacity of 
56,888 beds to 39,821 beds.
    \78\ Non-COVID-19 holding capacity was exceeded as recently as 
July 25, 2021.
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    CBP faces unique challenges in implementing certain COVID-19 
mitigation measures. All individuals encountered by U.S. Border Patrol 
must be processed in CBP facilities. Not only does this involve close 
and often continuing contact between CBP personnel and noncitizens, but 
CBP is further constrained by requirements separate noncitizens within 
its holding facilities according to specific permutations.\79\ These 
cohorting requirements significantly complicate CBP's ability to 
address COVID-19-related risks, as CBP facility capacity to accommodate 
COVID-19 mitigation protocols may not always align with the makeup of 
the incoming population of noncitizens and the categorical separations 
required of DHS.
---------------------------------------------------------------------------

    \79\ For example, criminal cases must be held separately from 
administrative cases, SA must be separated by gender identity, FMU 
and UC must be separated from SA, and all vulnerable individuals 
must be protected from harm.
---------------------------------------------------------------------------

Immigration Processing Under Title 8 of the U.S. Code
    The vast majority of noncitizens attempting to enter the United 
States without proper travel documents are SA; SA account for 68% of 
overall CBP encounters this fiscal year as of July 26, 2021. Under 
normal Title 8 immigration processes, SA are transferred to ICE custody 
pending removal proceedings. As noted above, absent expulsions directed 
by an order under 42 U.S.C. 265, SA presenting at POE or attempting 
entry between POE would be processed and held in CBP facilities while 
awaiting transfer to ICE. Generally, CBP only releases SA into U.S. 
communities as a last resort, due to severe overcrowding and when all 
possible detention options have been explored.
    A smaller percentage, 23%, of noncitizens encountered by CBP are 
members of an FMU.\80\ As with SA, CBP has limited capacity to hold 
FMU. Under Title 8, due to court-ordered restrictions that largely 
prohibit the long-term detention of families, FMU are generally 
released from DHS custody pending removal proceedings. Prior to 
release, some FMU are transferred from CBP custody to Family Staging 
Centers (FSC) operated by ICE. Only a limited number of FMU may be held 
in an FSC, and time in custody for an FMU is generally about 2-3 days 
before being released. FSC capacity is further limited by COVID-19 
mitigation protocols.\81\
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    \80\ Thus far this fiscal year, as of July 26, 2021.
    \81\ The total capacity for these FSCs is 3,230. However, due to 
COVID-19 mitigation protocols and family composition limitations, 
current operational capacity for the FSCs is approximately 2,400. In 
July 2021, due to an influx of single adults at the SWB, ICE ceased 
intake of family units at one of the FSCs and began to transition 
the facility to hold single adults. With this transition, the 
remaining COVID-limited FSC capacity for family units is 
approximately 1,800. Additionally, ICE has procured 1,200 additional 
beds at Emergency Family Staging Centers (EFSCs); this bed space is 
not limited by family composition or COVID-19.
---------------------------------------------------------------------------

    Releasing FMU to communities necessitates robust testing, 
vaccination where possible, and careful attention to consequence 
management (e.g., facilities for isolation and quarantine). DHS has 
partnered with state and local agencies and non-governmental 
organizations to facilitate COVID-19 testing of FMU upon release from 
CBP custody. Pursuant to these arrangements, CBP generally transports 
FMU to release locations where partner agencies and organizations are 
on-site to provide testing and facilitate consequence management. 
Although the implementing partners and their capacities (including for 
consequence management such as housing) vary, the objectives are 
constant. These resources, however, are limited. They are already 
stretched thin, and certainly not available for all FMU who would be 
processed under Title 8 in the absence of an order issued under 42 
U.S.C. 265. DHS has committed to supporting and, where possible, 
expanding these efforts, including exploring the incorporation of 
vaccination into this model. CDC strongly supports DHS efforts that 
include broad-based testing and vaccination.
Immigration Processing With an Order Under 42 U.S.C. 265
    Following the issuance of the March and October Orders, covered 
noncitizens apprehended at or near U.S. borders, regardless of their 
country of origin, generally were expelled to Mexico or Canada, 
whichever they entered from, via the nearest POE, or to their country 
of origin. Where possible, SA and FMU eligible for expulsion based on 
the March and October Orders have been processed pursuant to the Title 
42 authority, unless a case-by-case exception was made by DHS.\82\
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    \82\ Some countries have put in place limitations that make 
expulsion pursuant to Title 42 inapplicable. The October Order 
excepted covered noncitizens ``who must test negative for COVID-19 
before they are expelled to their home country'' and several 
countries refuse to accept the return of SA and FMU and other 
individuals unless DHS first secures a negative test result for each 
individual to be returned. These noncitizens are thus not covered by 
the prior Order and thus cannot be expelled pursuant to Title 42. 
See 85 FR at 65807.
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    Even with the March and October Orders in place, a significant 
percentage of FMU were unable to be expelled pursuant to the order, 
given a range of factors, including, most notably, restrictions imposed 
by foreign governments.\83\ For example, the Mexican government has 
placed certain nationality- and demographic-specific restrictions on 
the individuals it will accept for return via the Title 42 expulsion 
process. With limited exceptions, the Mexican government will only 
accept the return of Mexican and Northern Triangle nationals. Moreover, 
along sections of the border, Mexican officials refuse to accept the 
return of any non-Mexican family with children under the age of seven, 
greatly reducing DHS' ability to expel FMU. In addition, many countries 
impose travel requirements, including COVID-19 testing, consular 
interviews, and identity verification that can delay repatriation. 
These added requirements often make prompt expulsion a practical 
impossibility. Conversely, DHS continues to be able to process the 
majority of SA under Title 42.\84\ In those cases where Title 42 
processing is not possible, SA and FMU are instead processed pursuant 
to Title 8. Processing noncitizens and issuing a Notice to Appear under 
Title 8 processes takes approximately an hour and a half to two hours 
per person. Conversely, processing an individual for expulsion under 
the CDC order takes roughly 15 minutes and generally happens outdoors.
---------------------------------------------------------------------------

    \83\ Only 33% of FMU encountered fiscal year to date have been 
expelled under Title 42 and this percentage has fallen over time. In 
June 2021, only 14% of FMU were expelled under Title 42, an average 
of approximately 300 per day.
    \84\ Fiscal year to date, 89% of SA have been expelled under 
Title 42. This percentage has fallen slightly as the constraints on 
expelling individuals have increased. In June 2021, 82% of SA were 
expelled under Title 42, an average of over 3,000 per day.
---------------------------------------------------------------------------

    The March and October Orders permitted noncitizens to be promptly 
returned to their country of origin, rather than being transferred to 
ICE custody or released into the United States, resulting in 
noncitizens spending shorter amounts of time in custody at CBP 
facilities. However, as the number of noncitizens attempting to enter 
the United States has surged and as individuals cannot be expelled 
pursuant to Title 42 given the restrictions in place, the time in 
custody at CBP facilities has increased for SA and FMU, even with the 
October Order in place. As of July 29, 2021, the current average time 
in custody at CBP facilities for SA

[[Page 42837]]

not subject to expulsion under the October Order is 50 hours. FMU 
currently spend an average of 62 hours in CBP custody prior to release 
or transfer to ICE. If the CDC Order were not in place, both SA and FMU 
time in custody would likely increase significantly.

B. Public Health Assessment of Single Adults and Family Units

    Implementation of CDC's March and October Orders significantly 
reduced the length of time covered noncitizen SA and FMU are held in 
congregate settings at POE and U.S. Border Patrol stations, as well as 
in the ICE facilities that subsequently hold noncitizens.\85\ By 
reducing congestion in these facilities, the Orders have helped lessen 
the introduction, transmission, and spread of COVID-19 among border 
facilities and into the United States while also decreasing the risk of 
exposure to COVID-19 for DHS personnel and others in the facilities. 
Implementation of the Orders has mitigated the potential erosion of DHS 
operational capacity due to COVID-19 outbreaks. The reduction in the 
number of SA and FMU held in these congregate settings continues to be 
a necessary mitigation measure as DHS moves towards the resumption of 
normal border operations.
---------------------------------------------------------------------------

    \85\ For example, when processing noncitizens under Title 8, 
prior to referral to ICE or release into the community, CBP 
generally issues the noncitizen a ``Notice to Appear'' (also called 
an I-862), which is a charging document that initiates removal 
proceedings against the noncitizen and may include a court date or 
direct the noncitizen to report to an ICE office to receive a court 
date.
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    The availability of testing, vaccination, and other mitigation 
measures \86\ at migrant holding facilities must also be considered. 
While downstream ICE facilities may have greater ability to provide 
these measures, CBP cannot appropriately execute consequence management 
measures to minimize spread or transmission of COVID-19 within its 
facilities. Space constraints, for example, preclude implementation of 
cohorting and consequence management such as quarantine and isolation. 
Covered noncitizens housed in congregate settings who may be infected 
with COVID-19 may ultimately increase community transmission rates in 
the United States, especially among susceptible populations (i.e., non-
immune, under-vaccinated, and non-vaccinated persons). Mitigation 
measures, especially testing and vaccination, must be considered for 
the noncitizens being held, as well as for facility personnel. On-site 
COVID-19 testing for noncitizens at CBP holding facilities is very 
limited and the majority of testing takes place off-site. For example, 
if a noncitizen is transported to a community healthcare facility for 
medical care, testing is provided based on local protocols. Once 
transferred to ICE custody, testing for SA and FMU is more widely 
available.
---------------------------------------------------------------------------

    \86\ See Interim Guidance on Management of Coronavirus Disease 
2019 (COVID-19) in Correctional and Detention Facilities, Centers 
for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html#correctional-facilities (last visited July 28, 2021).
---------------------------------------------------------------------------

    Although COVID-19-related healthcare resources have substantially 
improved since the October Order was issued, emerging variants and the 
potential for a future vaccine-resistant variant mean the possible 
impacts on U.S. communities and local healthcare resources in the event 
of a COVID-19 outbreak at CBP facilities cannot be ignored. The 
introduction, transmission, and spread of SARS-CoV-2--including its 
variants--among covered noncitizens during processing and holding at 
congregate CBP settings remain a significant concern to the 
noncitizens, CBP personnel, as well as the community at large in light 
of transmission to unvaccinated individuals and the potential for 
breakthrough cases. Of particular note, POE and U.S. Border Patrol 
stations are ill-equipped to manage an outbreak and these facilities 
are heavily reliant on local healthcare systems for the provision of 
more extensive medical services to noncitizens.\87\ Transfers to local 
healthcare systems for care could strain local or regional healthcare 
resources. Reliance on healthcare resources in border and destination 
communities may increase the pressure on the U.S. healthcare system and 
supply chain during the current public health emergency.\88\ Of note, 
hospitalization rates are once again soaring nationally as the Delta 
variant spreads and the vaccination rate of the public lags. Ensuring 
the continued availability of healthcare resources is a critical 
component of the federal government's overall public health response to 
COVID-19.
---------------------------------------------------------------------------

    \87\ See CBP Directive No. 2210-004, U.S. Customs and Border 
Protection, https://www.cbp.gov/sites/default/files/assets/documents/2019-Dec/CBP_Final_Medical_Directive_123019.pdf (Dec. 30, 
2019). Many of the U.S. Border Patrol stations and POE facilities 
are located in remote areas and do not have ready access to local 
healthcare systems (which typically serve small, rural populations 
and have limited resources). 85 FR 56424, 56433. See also Abubakar 
I, Aldridge RW, Devakumar D, et al. The UCL-Lancet Commission on 
Migration and Health: the health of a world on the move. Lancet. 
2018;392(10164):2606-2654. doi:10.1016/S0140-6736(18)32114-7.
    \88\ See COVID-19 State Profile Report--Combined Set, 
HealthData.gov, https://healthdata.gov/Community/COVID-19-State-Profile-Report-Combined-Set/5mth-2h7d (last updated July 28, 2021).
---------------------------------------------------------------------------

    Given the nature of COVID-19, there is no zero-risk scenario, 
particularly in congregate settings and with variants as transmissible 
as that of Delta in high circulation in the country. The ongoing 
pandemic presents complex and dynamic challenges relating to public 
health that limit DHS' ability to process noncitizens safely under 
normal Title 8 procedures. Processing a noncitizen under Title 8 can 
take up to eight times as long as processing a noncitizen under Title 
42. Importantly, longer processing times result in longer exposure 
times to a heightened risk of COVID-19 transmission for both 
noncitizens and CBP personnel. Amid the ongoing migrant surge, both the 
COVID-19-reduced capacity and higher non-COVID holding capacity limits 
have been exceeded in CBP facilities. Complete termination of any order 
under 42 U.S.C. 265 would increase the number of noncitizens requiring 
processing under Title 8, resulting in severe overcrowding and a high 
risk of COVID-19 transmission among those held in the facilities and 
the CBP workforce, ultimately burdening the local healthcare 
system.\89\
---------------------------------------------------------------------------

    \89\ Throughout the course of the COVID-19 pandemic, CDC has 
observed numerous outbreaks in similar congregate settings. See FAQs 
for Correctional and Detention Facilities, Centers for Disease 
Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/faq.html (last visited Apr. 15, 
2021).
---------------------------------------------------------------------------

    All of this is of particular concern as the Delta variant continues 
to drive an increase in COVID-19 cases. While scientists learn more 
about Delta and other emerging variants, rigorous and increased 
compliance with public health mitigation strategies is essential to 
protect public health.\90\ Reducing the further introduction, 
transmission, and spread of these variants and future variants of 
concern into the United States is key to defeating COVID-19. CDC has 
concluded that SA and FMU should continue to be subject to the Order at 
this time pending further improvements in the public health situation.
---------------------------------------------------------------------------

    \90\ About Variants of the Virus that Causes COVID-19, Centers 
for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/transmission/variant.html (last updated Apr. 2, 2021).
---------------------------------------------------------------------------

C. Comparison to Unaccompanied Noncitizen Children

    As discussed in the July Exception, UC are differently situated 
than SA and

[[Page 42838]]

FMU. The Government has greater ability to care for UC while 
implementing appropriate COVID-19 mitigation measures. ORR has 
established a robust network of care facilities that provide testing 
and medical care and institute COVID-19 mitigation protocols, including 
vaccination for personnel and eligible UC. In light of these 
considerations, 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 temporary or licensed ORR 
shelter do not pose a significant level of risk for COVID-19 spread 
into the community. UC are released only 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,\91\ there is 
appropriate infrastructure in place to protect the children, 
caregivers, and local and destination communities from elevated risk of 
COVID-19 transmission. CDC believes the COVID-19-related public health 
concerns associated with UC introduction can be adequately addressed 
without UC being subject to this Order. As outlined in the July 
Exception and incorporated herein, CDC is fully excepting UC from this 
Order. The number of UC entering the United States is smaller than both 
the number of SA \92\ and of FMU. Whereas UC can be excepted from the 
Order without posing a significant public health risk, the same is not 
true of SA and FMU, as described above.
---------------------------------------------------------------------------

    \91\ 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.
    \92\ Note, the total number of SA encounters may include repeat 
encounters with SA who attempt entry again following expulsion.
---------------------------------------------------------------------------

D. Summary of Findings

    Upon review of the various public health factors outlined above and 
in consideration of the circumstances at DHS facilities, it is CDC's 
assessment that suspending the right to introduce covered noncitizen SA 
and FMU who would otherwise be held at POE and U.S. Border Patrol 
stations remains necessary as the United States continues to combat the 
COVID-19 public health emergency. In making this determination, CDC has 
considered various possible alternatives (including but not limited to 
terminating the application of an order under 42 U.S.C. 265 for some or 
all SA and FMU, modifying the availability of exceptions for individual 
SA and FMU in an order under 42 U.S.C. 265, and reissuing an order 
under 42 U.S.C. 265 for some or all UC); but for the reasons discussed 
herein, CDC finds that the continued suspension of the right to 
introduce SA and FMU under the terms set forth herein, combined with 
the exception for UC, is appropriate at this time. This temporary 
suspension pending further improvements in the public health situation 
and greater ability to implement COVID-19 mitigation measures in 
migrant holding facilities will slow the influx of noncitizens into 
environments at higher risk for COVID-19 transmission and spread.
    DHS has indicated a commitment to restoring border operations in a 
manner that complies with applicable COVID-19 mitigation protocols 
while also accounting for other public health and humanitarian 
concerns. In light of available mitigation measures, and with DHS' 
pledge to expand capacity in a COVID-safe manner similar to expansions 
undertaken by HHS and ORR to address UC influx, CDC believes that the 
gradual resumption of normal border operations under Title 8 is 
feasible. With careful planning, this may be initiated in a stepwise 
manner that complies with COVID-19 mitigation protocols. HHS and CDC 
intend to support DHS in this effort and continues to work with DHS to 
provide technical guidance on COVID-19 mitigation strategies for their 
unique facilities and populations.\93\ CDC understands that DHS intends 
to continue exercising case-by-case exceptions for individual SA and 
FMU based on a totality of the circumstances as CDC transitions away 
from this Order. CDC is also providing an additional exception to 
permit DHS to except noncitizens participating in a DHS-approved 
program that incorporates pre-processing COVID-19 testing in Mexico of 
the noncitizens, prior to their safe and orderly entry to the U.S. via 
ports of entry. Based on the incorporation of relevant COVID-19 
mitigation measures in such programs, in consultation with CDC, CDC 
believes such an exception is consistent with its legal authorities and 
in the public health interest.
---------------------------------------------------------------------------

    \93\ CDC has advised DHS on best practices with regard to 
testing noncitizens at the point they are released to U.S. 
communities to await further immigration proceedings. In addition to 
enforcing physical distancing (as practicable), mask-wearing, and 
testing for both noncitizens and personnel alike in POE and U.S. 
Border Patrol stations, CDC advises vaccination of DHS/CBP personnel 
to further reduce the risk of COVID-19 introduction, transmission, 
and spread in facilities and communities and protect the federal 
workforce. Widespread vaccination of federal employees and other 
personnel in congregate settings at POE and U.S. Border Patrol 
stations is another layer of the strategy that will lead to the 
normalization of border operations.
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II. Legal Basis for This Order Under Sections 362 and 365 of the Public 
Health Service Act and 42 CFR 71.40

    CDC is issuing this Order pursuant to sections 362 and 365 of the 
Public Health Service Act (42 U.S.C. 265, 268) and the implementing 
regulation at 42 CFR 71.40. In accordance with these authorities, the 
CDC Director is permitted to prohibit, in whole or in part, the 
introduction into the United States of persons from designated foreign 
countries (or one or more political subdivisions or regions thereof) or 
places, only for such period of time that the Director deems necessary 
to avert the serious danger of the introduction of a quarantinable 
communicable disease, by issuing an Order in which the Director 
determines that:
    (1) By reason of the existence of any quarantinable communicable 
disease in a foreign country (or one or more political subdivisions or 
regions thereof) or place there is serious danger of the introduction 
of such quarantinable communicable disease into the United States; and
    (2) This danger is so increased by the introduction of persons from 
such country (or one or more political subdivisions or regions thereof) 
or place that a suspension of the right to introduce such persons into 
the United States is required in the interest of public health.\94\
---------------------------------------------------------------------------

    \94\ 42 U.S.C. 265; 42 CFR 71.40.
---------------------------------------------------------------------------

    CDC has authority under Section 362 and the implementing regulation 
to issue this Order to mitigate the further spread of COVID-19 disease, 
especially as the need to prevent proliferation of COVID-19 disease 
related to SARS-CoV-2 virus variants is heightened while vaccination 
efforts continue. Section 362 and the implementing regulation provide 
the Director with a public health tool to suspend introduction of 
persons not only to prevent the introduction of a quarantinable 
communicable disease, but also to aid in continued efforts to mitigate 
spread of that disease.\95\
---------------------------------------------------------------------------

    \95\ 85 FR 56424 at 56425-26.
---------------------------------------------------------------------------

    The term ``introduction into the United States'' is defined in 42 
CFR 71.40 as ``the movement of a person from a foreign country (or one 
or more political subdivisions or regions thereof) or place, or series 
of foreign countries or places, into the United States so as to bring 
the person into contact with persons or property in the United States,

[[Page 42839]]

in a manner that the Director determines to present a risk of 
transmission of a quarantinable communicable disease to persons, or a 
risk of contamination of property with a quarantinable communicable 
disease, even if the quarantinable communicable disease has already 
been introduced, transmitted, or is spreading within the United 
States.'' 42 CFR 71.40(b)(1). Similarly, the term ``serious danger of 
the introduction of such quarantinable communicable disease into the 
United States'' is defined as, ``the probable introduction of one or 
more persons capable of transmitting the quarantinable communicable 
disease into the United States, even if persons or property in the 
United States are already infected or contaminated with the 
quarantinable communicable disease.'' 42 CFR 71.40(b)(3).
    In promulgating Sec.  71.40, CDC and HHS noted that 
```introduction' does not necessarily conclude the instant that a 
person first steps onto U.S. soil. The introduction of a person into 
the United States can occur not only when a person first steps onto 
U.S. soil, but also when a person on U.S. soil moves further into the 
United States, and begins to come into contact with persons or property 
in ways that increase the risk of transmitting the quarantinable 
communicable disease.'' \96\ This language recognizes that many 
quarantinable communicable diseases, including COVID-19, may be spread 
by infected individuals who are asymptomatic and therefore unaware that 
they are capable of transmitting the disease. Even when a communicable 
disease is already circulating within the United States, prevention and 
mitigation of continued transmission of the virus is nevertheless a key 
public health measure. In this case, although COVID-19 has already been 
introduced and is spreading within the United States, this Order serves 
as an important disease-mitigation tool to protect public health. This 
is particularly true as new variants of the virus continue to emerge. 
By continuing to suspend the introduction of persons from foreign 
countries into the United States, this Order will help minimize the 
spread of variants and their ability to accelerate disease 
transmission.
---------------------------------------------------------------------------

    \96\ Id. at 56425.
---------------------------------------------------------------------------

    Section 71.40(b)(2) defines ``[p]rohibit, in whole or in part, the 
introduction into the United States of persons'' in Section 362 as ``to 
prevent the introduction of persons into the United States by 
suspending any right to introduce into the United States, physically 
stopping or restricting movement into the United States, or physically 
expelling from the United States some or all of the persons.'' See also 
42 U.S.C. 265 (authorizing the prohibition when the danger posed by the 
communicable disease ``is so increased by the introduction of persons 
from such country . . . or place that a suspension of the right to 
introduce such persons into the United States is required in the 
interest of public health''). Pursuant to that provision, this Order 
permits expulsion of persons covered by it, as did the prior Orders 
issued under this authority.\97\ CDC recognizes that expulsion is an 
extraordinary action but, as explained in the Final Rule, the power to 
expel is critical where neither HHS/CDC, nor other Federal agencies, 
nor state or local governments have the facilities and personnel 
necessary to quarantine, isolate, or conditionally release the number 
of persons who would otherwise increase the serious danger of the 
introduction of a quarantinable communicable disease into the United 
States.\98\ In those situations, the rapid expulsion of persons from 
the United States may be the most effective public health measure that 
HHS/CDC can implement within the finite resources of HHS/CDC and its 
Federal, State, and local partners.\99\
---------------------------------------------------------------------------

    \97\ See id. at 56425, 56433.
    \98\ Id. at 56425, 56445-46.
    \99\ Id. at 56425.
---------------------------------------------------------------------------

    As stated in the Final Rule for 42 CFR 71.40, CDC ``may, in its 
discretion, consider a wide array of facts and circumstances when 
determining what is required in the interest of public health in a 
particular situation . . . includ[ing]: the overall number of cases of 
disease; any large increase in the number of cases over a short period 
of time; the geographic distribution of cases; any sustained 
(generational) transmission; the method of disease transmission; 
morbidity and mortality associated with the disease; the effectiveness 
of contact tracing; the adequacy of state and local healthcare systems; 
and the effectiveness of state and local public health systems and 
control measures.'' \100\ Other factors noted in the Final Rule are the 
potential for disease spread among persons held in congregate settings, 
specifically during processing and holding at CBP facilities, and the 
potential for disease spread to the community at large.\101\
---------------------------------------------------------------------------

    \100\ Id. at 56444.
    \101\ Id. at 56434. Strain on healthcare systems was also cited 
as a factor in the Final Rule, specifically the additional strain 
that noncitizen migrant healthcare needs may place on already 
overburdened systems; the Final Rule described the reduction of this 
strain as a result of CDC's previously issued orders. Id. at 56431.
---------------------------------------------------------------------------

    As stated in 42 CFR 71.40, this Order does not apply to U.S. 
citizens, U.S. nationals, lawful permanent residents, members of the 
armed forces of the United States and associated personnel if the 
Secretary of Defense provides assurance to the Director that the 
Secretary of Defense has taken or will take measures such as quarantine 
or isolation, or other measures maintaining control over such 
individuals, to prevent the risk of transmission of the quarantinable 
communicable disease into the United States, and U.S. government 
employees or contractors on orders abroad, or their accompanying family 
members who are on their orders or are members of their household, if 
the Director receives assurances from the relevant head of agency and 
determines that the head of the agency or department has taken or will 
take measures such as quarantine or isolation, to prevent the risk of 
transmission of a quarantinable communicable disease into the United 
States.\102\
---------------------------------------------------------------------------

    \102\ 42 CFR 71.40(e) and (f).
---------------------------------------------------------------------------

    In addition, this Order does not apply to those classes of persons 
excepted by the CDC Director. Including exceptions in the Order is 
consistent with Section 362 and 42 CFR 71.40, which permit the 
prohibition of introduction into the United States to be ``in whole or 
in part.'' As explained in the Final Rule for section 71.40, this 
language is intended to allow the Director to narrowly tailor the use 
of the authority to what is required in the interest of public 
health.\103\ Pursuant to this capability, CDC is therefore excepting 
specific categories of persons from the Order, as described herein.
---------------------------------------------------------------------------

    \103\ 85 FR 56424, 56444.
---------------------------------------------------------------------------

    As required by Section 362, this Order will be in effect only for 
as long as it is needed to avert the serious danger of the 
introduction, transmission, and spread of COVID-19 into the United 
States and will be terminated when the continuation of the Order is no 
longer necessary to protect the public health. Finally, as directed by 
42 CFR 71.40(c), the Order sets out the following:
    (1) The foreign countries (or one or more political subdivisions or 
regions thereof) or places from which the introduction of persons is 
being prohibited;
    (2) The period of time or circumstances under which the 
introduction of any persons or class of persons into the United States 
is being prohibited;

[[Page 42840]]

    (3) The conditions under which that prohibition on introduction 
will be effective, in whole or in part, including any relevant 
exceptions that the Director determines are appropriate;
    (4) The means by which the prohibition will be implemented; and
    (5) The serious danger posed by the introduction of the 
quarantinable communicable disease in the foreign country or countries 
(or one or more political subdivisions or regions thereof) or places 
from which the introduction of persons is being prohibited.

III. Issuance and Implementation of Order

    Based on the foregoing public health reassessment, I hereby issue 
this Order pursuant to Sections 362 and 365 of the Public Health 
Service (PHS) Act, 42 U.S.C. 265, 268, and their implementing 
regulations under 42 CFR part 71,\104\ which authorize the CDC Director 
to suspend the right to introduce persons into the United States when 
the Director determines that the existence of a quarantinable 
communicable disease in a foreign country or place creates a serious 
danger of the introduction of such disease into the United States and 
the danger is so increased by the introduction of persons from the 
foreign country or place that a temporary suspension of the right of 
such introduction is necessary to protect public health. This Order 
hereby replaces and supersedes the Order Suspending the Right to 
Introduce Certain Persons from Countries Where a Quarantinable 
Communicable Disease Exists, issued on October 13, 2020 (October Order) 
\105\ and affirms and incorporates the exception for UC published in 
the July Exception, such that UC are excepted from this Order.\106\
---------------------------------------------------------------------------

    \104\ 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.
    \105\ Supra note 4.
    \106\ Supra note 3.
---------------------------------------------------------------------------

    This Order addresses the current status of the COVID-19 public 
health emergency and ongoing public health concerns, including virus 
transmission dynamics, viral variants, mitigation efforts, the public 
health risks inherent to high migration volumes, low vaccination rates 
among migrants, and crowding of immigration facilities. In making this 
determination, I have considered myriad facts, including the congregate 
nature of border facilities and the high risk for COVID-19 outbreaks--
especially now with the predominant, more transmissible Delta variant--
presented following the introduction of an infected person, as well as 
the benefits of reducing such risks. I have also considered 
epidemiological information, including the viral transmissibility and 
asymptomatic transmission of COVID-19, the epidemiology and spread of 
SARS-CoV-2 variants, the morbidity and mortality associated with the 
disease for individuals in certain risk categories, as well as public 
health concerns with crowding at border facilities and resultant risk 
of transmission of additional quarantinable communicable diseases. I am 
issuing this Order to preserve the health and safety of U.S. citizens, 
U.S. nationals, and lawful permanent residents, and personnel and 
noncitizens in POE and U.S. Border Patrol stations by reducing the 
introduction, transmission, and spread of the virus that causes COVID-
19, including new and existing variants, in congregate settings where 
covered noncitizens would otherwise be held while undergoing 
immigration processing, including at POE and U.S. Border Patrol 
stations at or near the U.S. land and adjacent coastal borders.
    Based on an assessment of the current COVID-19 epidemiologic 
landscape and the U.S. government's ongoing efforts to accommodate UC, 
CDC does not find public health justification for this Order to apply 
with respect to UC, as outlined in the July Exception. Although CDC 
finds that, at this time, this Order should be applicable to FMU, CDC 
notes that there are fewer FMU than SA unlawfully entering the United 
States and many FMU are already being processed pursuant to Title 8 
versus Title 42 given a variety of practical and other limitations on 
immediately expelling FMU. DHS has indicated that it plans to continue 
to partner with state and local agencies and nongovernmental 
organizations to provide testing, consequence management, and 
eventually vaccination to FMU who are determined to be eligible for 
Title 8 processing. CDC considers these efforts to be a critical risk 
reduction measure and encourages DHS to evaluate the potential 
expansion of such COVID-19 mitigation programs for FMU such that they 
may be excepted from this Order in the future. Although vaccination 
programs are not available at this time, CDC encourages DHS to develop 
such programs as quickly as practicable. While the migration of SA and 
FMU into the United States during the COVID-19 public health emergency 
continues and given the inherent risks that accompany holding these 
groups in crowded congregate settings with insufficient options for 
effective mitigation, CDC finds the public health justification for 
this Order is sustained at this time.
    DHS has indicated that it is committed to restoring border 
operations and facilitating arrivals to the United States in a manner 
that comports with CDC's recommended COVID-19 mitigation protocols. 
Given the recent migrant surge, DHS believes that an incremental 
approach is the best way to recommence normal border operations while 
ensuring health and safety concerns are addressed. To this end, DHS 
will work to establish safe, efficient, and orderly processes that are 
consistent with appropriate health and safety protocols and the 
epidemiology of the COVID-19 pandemic, in consultation with CDC.
    CDC's expectation is that although this Order will continue with 
respect to SA and FMU, DHS will use case-by-case exceptions based on 
the totality of the circumstances where appropriate to except 
individual SA and FMU in a manner that gradually recommences normal 
migration operations as COVID-19 health and safety protocols and 
capacity allows. DHS will consult with CDC to ensure that the standards 
for such exceptions are consistent with current CDC guidance and public 
health recommendations. Based on this incorporation of relevant COVID-
19 mitigation measures, CDC believes it is consistent with the legal 
authorities and in the public health interest to continue the use of 
case-by-case exceptions as a step towards the resumption of normal 
border operations under Title 8. Additionally, DHS is working in 
coordination with nongovernmental organizations, state and local health 
departments, and other relevant facilitating organizations and entities 
as appropriate to develop DHS-approved processes that include pre-entry 
COVID-19 testing. Additional public health mitigation measures, such as 
maintaining physical distancing and use of masks, testing, and 
isolation and quarantine as appropriate, are included in such 
processes. DHS has documented these processes and shared them with CDC. 
CDC has consulted with DHS to ensure that the processes appropriately 
address public health concerns and align with relevant CDC COVID-19 
mitigation protocols. Based on these plans and processes, CDC believes 
it is consistent with legal authorities and in the public health 
interest to permit an exception for noncitizens in such DHS-approved 
processes to allow for safe and orderly entry into the United States.

[[Page 42841]]

A. Covered Noncitizens

    This Order applies to persons traveling from Canada or Mexico 
(regardless of their country of origin) who would otherwise be 
introduced into a congregate setting in a 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. For 
purposes of this Order, I refer to persons covered by the Order as 
``covered noncitizens.''

B. Exceptions

    This Order does not apply to the following:
     U.S. citizens, U.S. nationals, and lawful permanent 
residents; \107\
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    \107\ 42 CFR 71.40(f).
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     Members of the armed forces of the United States and 
associated personnel, U.S. government employees or contractors on 
orders abroad, or their accompanying family members who are on their 
orders or are members of their household, subject to required 
assurances; \108\
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    \108\ 42 CFR 71.40(e)(1) and (3).
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     Noncitizens who hold valid travel documents and arrive at 
a POE;
     Noncitizens in the visa waiver program who are not 
otherwise subject to travel restrictions and arrive at a POE;
     Unaccompanied Noncitizen Children; \109\
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    \109\ As excepted pursuant to the 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. 86 FR 
38717 (July 22, 2021).
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     Noncitizens who would otherwise be subject to this Order, 
who are permitted to enter the U.S. as part of a DHS-approved process, 
where the process approved by DHS has been documented and shared with 
CDC, and includes appropriate COVID-19 mitigation protocols, per CDC 
guidance; and
     Persons whom customs officers determine, with approval 
from a supervisor, should be excepted from this Order based on the 
totality of the circumstances, including consideration of significant 
law enforcement, officer and public safety, humanitarian, and public 
health interests. DHS will consult with CDC regarding the standards for 
such exceptions to help ensure consistency with current CDC guidance 
and public health recommendations.

C. APA, Review, and Termination

    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.\110\ As part of the consultation, DHS developed 
operational plans for implementing this Order. CDC has reviewed these 
plans and finds them to be consistent with the language of this Order 
directing that covered noncitizens spend as little time in congregate 
settings as practicable under the circumstances. In my view, DHS's 
assistance with implementing the Order is necessary, as CDC's other 
public health tools are not viable mechanisms given CDC resource and 
personnel constraints, the large numbers of covered noncitizens 
involved, and the likelihood that covered noncitizens do not have homes 
in the United States.\111\
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    \110\ 42 U.S.C. 268; 42 CFR 71.40(d).
    \111\ CDC relies on the Department of Defense, other federal 
agencies, and state and local governments to provide both logistical 
support and facilities for federal quarantines. CDC lacks the 
resources, manpower, and facilities to quarantine covered 
noncitizens.
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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, 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 all 
covered noncitizens. In addition, this Order concerns ongoing 
discussions with Canada and Mexico on how best to control COVID-19 
transmission over our shared borders and therefore directly 
``involve[s] . . . a . . . foreign affairs function of the United 
States;'' \112\ thus, notice and comment and a delay in effective date 
are not required.
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    \112\ 5 U.S.C. 553(a)(1).
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    This Order shall remain effective until either the expiration of 
the Secretary of HHS' declaration that COVID-19 constitutes a public 
health emergency, or I determine that the danger of further 
introduction, transmission, or spread of COVID-19 into the United 
States has ceased to be a serious danger to the public health and 
continuation of this Order is no longer necessary to protect public 
health, whichever occurs first. At least every 60 days, the CDC shall 
review 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. border, to determine whether 
the Order remains necessary to protect public health. Upon determining 
that the further introduction of COVID-19 into the United States is no 
longer a serious danger to the public health necessitating the 
continuation of this Order, I will publish a notice in the Federal 
Register terminating this Order. I retain the authority to modify or 
terminate the Order, or its implementation, at any time as needed to 
protect public health.

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: August 3, 2021.
Sherri Berger,
Chief of Staff, Centers for Disease Control and Prevention.
[FR Doc. 2021-16856 Filed 8-3-21; 4:15 pm]
BILLING CODE 4163-18-P