[Federal Register Volume 87, Number 52 (Thursday, March 17, 2022)]
[Notices]
[Pages 15243-15253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05687]



[[Page 15243]]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Disease Control and Prevention


Public Health Reassessment and Immediate Termination of Order 
Suspending the Right To Introduce Certain Persons From Countries Where 
a Quarantinable Communicable Disease Exists With Respect to 
Unaccompanied Noncitizen Children

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

ACTION: General notice.

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SUMMARY: The Centers for Disease Control and Prevention (CDC), located 
within the Department of Health and Human Services (HHS), is hereby 
terminating the Order Suspending the Right to Introduce Certain Persons 
from Countries Where a Quarantinable Communicable Disease Exists, 
issued on August 2, 2021 (August Order), and all related prior orders 
issued pursuant to the authorities in sections 362 and 365 of the 
Public Health Service (PHS) Act and the implementing regulation, to the 
extent they apply to Unaccompanied Noncitizen Children (UC).

DATES: This Order was implemented March 11, 2022.

FOR FURTHER INFORMATION CONTACT: Jennifer Buigut, Division of Global 
Migration and Quarantine, National Center for Emerging and Zoonotic 
Infectious Diseases, Centers for Disease Control and Prevention, 1600 
Clifton Road NE, MS H16-4, Atlanta, GA 30329. Email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    Coronavirus disease 2019 (COVID-19) is a quarantinable communicable 
disease caused by the SARS-CoV-2 virus. As part of U.S. government 
efforts to mitigate the introduction, transmission, and spread of 
COVID-19, CDC issued the August Order, replacing a prior order issued 
on October 13, 2020 (October Order) which continued a series of orders 
issued pursuant to 42 U.S.C. 265, 268 and the implementing regulation 
at 42 CFR 71.40, suspending the right to introduce certain persons into 
the United States from countries or places where the quarantinable 
communicable disease exists in order to protect the public health from 
an increased risk of the introduction of COVID-19 (CDC Orders).
    The CDC Orders issued under 42 U.S.C. 265, 268 and 42 CFR 71.40 
were intended to reduce the risk of COVID-19 introduction, 
transmission, and spread at POE and U.S. Border Patrol stations by 
significantly reducing the number and density of covered noncitizens 
held in these congregate settings and thereby reducing risks to U.S. 
citizens and residents, Department of Homeland Security/Customs and 
Border Patrol personnel and noncitizens at the facilities, and local 
community healthcare systems. CDC has deemed the measures included in 
the CDC Orders necessary for the protection of public health during the 
ongoing COVID-19 pandemic.
    The August Order continued a suspension of the right to introduce 
``covered noncitizens,'' as defined below, into the United States along 
the U.S. land and adjacent coastal borders. The August Order 
specifically excepted UC and incorporated an exception for UC issued by 
CDC on July 16, 2021 (July Exception). Based on the public health 
landscape, the current status of the COVID-19 pandemic, the situation 
in congregate settings where UC seeking to enter the United States are 
processed and held, and the procedures in place for the processing of 
UC in such congregate settings, CDC has determined that a suspension of 
the right to introduce UC is not necessary to protect U.S. citizens, 
U.S. nationals, lawful permanent residents, personnel and noncitizens 
at the (POE) and U.S. Border Patrol stations, and destination 
communities in the United States at this time. This termination as to 
UC supersedes the July Exception incorporated in the August Order. The 
present termination does not address the application of the August 
Order to individuals in family units (FMU) or single adults (SA).
    The August Order applied specifically to covered noncitizens, 
defined as ``persons traveling from Canada or Mexico (regardless of 
their country of origin) who would otherwise be introduced into a 
congregate setting in a POE or U.S. Border Patrol station at or near 
the U.S. land and adjacent coastal borders subject to certain 
exceptions detailed below; this includes noncitizens who do not have 
proper travel documents, noncitizens whose entry is otherwise contrary 
to law, and noncitizens who are apprehended at or near the border 
seeking to unlawfully enter the United States between POE.'' Three 
groups typically make up covered noncitizens--single adults (SA), 
individuals in family units (FMU), and unaccompanied noncitizen 
children (UC). UC encountered in the United States were specifically 
excepted from the August Order based on its explicit incorporation by 
reference of CDC's July Exception of UC.
    UC are generally treated differently than other individuals 
apprehended at the border under ordinary immigration laws. When section 
265 does not apply, UC generally are transferred to the care and 
custody of HHS's Office of Refugee Resettlement (ORR) pursuant to the 
Trafficking Victims Protection Reauthorization Act of 2008. ORR is able 
to care for UC while implementing appropriate COVID-19 mitigation 
measures, given ORR's robust network of care facilities that provide 
testing and medical care, and DHS has already been excepting UC in 
accordance with CDC's August Order. With CDC's assistance and guidance, 
ORR also has implemented COVID-19 testing protocols for UC in its care 
and continues to practice other mitigation measures to prevent and 
curtail transmission of the SARS-CoV-2 virus among UC in its care.
    In the August Order, CDC committed to reassessing the public health 
circumstances necessitating the Order at least every 60 days by 
reviewing the latest information regarding the status of the COVID-19 
public health emergency and associated public health risks, including 
migration patterns, sanitation concerns, and any improvement or 
deterioration of conditions at the U.S. borders. Following a 
Preliminary Injunction issued by the U.S. District Court for the 
Northern District of Texas ordering that the July Exception for UC and 
its incorporation into the August Order be enjoined, CDC determined 
that it was necessary to conduct an immediate reassessment with respect 
to UC. This reassessment takes into account the current status of the 
pandemic.
    Based on the reassessment, the CDC Director finds that there is no 
longer a serious danger of the introduction, transmission, and spread 
of COVID-19 into the United States as a result of entry of UC and that 
a suspension of the introduction of UC is not required in the interest 
of public health. The CDC Director has determined that suspension of 
entry of UC is not necessary to protect U.S. citizens, U.S. nationals, 
lawful permanent residents, personnel and noncitizens at POE and U.S. 
Border Patrol stations, or destination communities in the United 
States. In light of that determination, CDC is hereby terminating the 
CDC Orders issued pursuant to 42 U.S.C. 265, 268 and 42 CFR 71.40 as 
they apply to UC, effective immediately. The current 60-day review 
process is scheduled to end on March 30, 2022, and CDC will conclude 
its reassessment of whether

[[Page 15244]]

the Order remains necessary in whole or part to protect the public 
health with respect to SA and FMU by that date.

Legal Authority

    CDC is hereby immediately terminating the August Order and all 
prior orders issued pursuant to sections 362 and 365 of the PHS Act (42 
U.S.C. 265, 268) and the implementing regulation at 42 CFR 71.40 to the 
extent they apply to UC.

Referenced Order

    A copy of the Order is provided below, and a copy of the signed 
Order can be found at https://www.cdc.gov/coronavirus/2019-ncov/more/pdf/NoticeUnaccompaniedChildren-update.pdf.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Disease Control and Prevention (CDC)

Order Under Sections 362 & 365 of the Public Health Service Act (42 
U.S.C. 265, 268) and 42 CFR 71.40

Public Health Reassessment and Immediate Termination of Order 
Suspending the Right To Introduce Certain Persons From Countries Where 
a Quarantinable Communicable Disease Exists With Respect to 
Unaccompanied Noncitizen Children

Executive Summary

    The Centers for Disease Control and Prevention (CDC), a component 
of the U.S. Department of Health and Human Services (HHS), is hereby 
terminating the Order Suspending the Right to Introduce Certain Persons 
from Countries Where a Quarantinable Communicable Disease Exists, 
issued on August 2, 2021 (August Order),\1\ and all related prior 
orders issued pursuant to the authorities in sections 362 and 365 of 
the Public Health Service (PHS) Act (42 U.S.C. 265, 268) and the 
implementing regulation at 42 CFR 71.40 (CDC Orders),\2\ to the extent 
that they apply to Unaccompanied Noncitizen Children (UC). The August 
Order continued a suspension of the right to introduce ``covered 
noncitizens,'' as defined in the Order,\3\ into the United States along 
the U.S. land and adjacent coastal borders. The August Order 
specifically excepted UC and incorporated an exception for UC issued by 
CDC on July 16, 2021 (July Exception).\4\ The August Order states that 
CDC will reassess at least every 60 days whether the Order remains 
necessary to protect the public health. CDC was in the process of 
assessing that question in light of the current public health 
situation. However, in response to an order of the U.S. District Court 
for the Northern District of Texas preliminarily enjoining the July 
Exception and the relevant portion of the August Order based on 
concerns about the adequacy of the CDC's explanation for those actions 
and consistent with CDC's continuing review, CDC has reopened this 
issue and reconsidered whether UC should be subject to the CDC Orders. 
CDC hereby concludes that UC should not be subject to the CDC Orders 
based on the current public health circumstances. Based on the public 
health landscape, the current status of the COVID-19 pandemic, the 
situation in congregate settings where UC seeking to enter the United 
States are processed and held, and the procedures in place for the 
processing of UC in such congregate settings, CDC has determined that a 
suspension of the right to introduce UC is not necessary to protect 
U.S. citizens, U.S. nationals, lawful permanent residents, personnel 
and noncitizens at the ports of entry (POE) and U.S. Border Patrol 
stations, and destination communities in the United States at this 
time. This termination as to UC supersedes the July Exception 
incorporated in the August Order. The present termination does not 
address the application of the August Order to individuals in family 
units (FMU) or single adults (SA).
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    \1\ Available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/CDC-Order-Suspending-Right-to-Introduce-_Final_8-2-21.pdf 
(last visited Mar. 7, 2022); see also 86 FR 42828 (Aug. 5, 2021).
    \2\ The ``CDC Orders'' issued pursuant to these legal 
authorities are found at 85 FR 17060 (Mar. 26, 2020), 85 FR 22424 
(Apr. 22, 2020), 85 FR 31503 (May 26, 2020), 85 FR 65806 (Oct. 16, 
2020), and 86 FR 42828 (Aug. 5, 2021) (fully incorporating by 
reference 86 FR 38717 (July 22, 2021), see 86 FR 42828, 42829 at 
note 3).
    \3\ See infra 1.
    \4\ Public Health Determination Regarding an Exception for 
Unaccompanied Noncitizen Children from Order Suspending the Right to 
Introduce Certain Persons from Countries Where a Quarantinable 
Communicable Disease Exists, Centers for Disease Control and 
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/more/pdf/NoticeUnaccompaniedChildren.pdf (July 16, 2021); 86 FR 38717 (July 
22, 2021); see 86 FR 42828, 42829 at note 1 (Aug. 5, 2021) (which 
fully incorporated by reference the July Exception relating to UC).
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Outline of Reassessment and Order

I. Background
    A. Public Health Landscape
    B. Current Status of the COVID-19 Pandemic
    1. Community COVID-19 Levels
    2. Information Specific to UC
II. Public Health Reassessment
    A. Changing Public Health Conditions
    B. Public Health Factors Specifically Relevant to UC Population
III. Legal Considerations
    A. Concerns Raised by the District Court
    B. Absence of Reliance Interests
    C. Timing Considerations
    D. Basis for Termination With Respect to UC Under Sections 362 
and 365 of the PHS Act and 42 CFR 71.40
IV. Issuance and Implementation of the Termination
    A. Termination as to UC
    B. APA Review

I. Background

    Coronavirus disease 2019 (COVID-19) is a quarantinable communicable 
disease \5\ caused by the SARS-CoV-2 virus. As part of U.S. Government 
efforts to mitigate the introduction, transmission, and spread of 
COVID-19, CDC issued the August Order,\6\ replacing a prior order 
issued on October 13, 2020 (October Order) which continued a series of 
orders issued pursuant to 42 U.S.C. 265, 268 and the implementing 
regulation at 42 CFR 71.40,\7\ suspending the right to introduce \8\ 
certain persons into the United States from countries or places where 
the quarantinable communicable disease exists in order to protect the 
public health from an increased risk of the introduction of COVID-19 
(CDC

[[Page 15245]]

Orders).\9\ The August Order applied specifically to covered 
noncitizens, defined as ``persons traveling from Canada or Mexico 
(regardless of their country of origin) who would otherwise be 
introduced into a congregate setting in a POE or U.S. Border Patrol 
station \10\ at or near the U.S. land and adjacent coastal borders 
subject to certain exceptions detailed below; this includes noncitizens 
who do not have proper travel documents, noncitizens whose entry is 
otherwise contrary to law, and noncitizens who are apprehended at or 
near the border seeking to unlawfully enter the United States between 
POE.'' \11\
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    \5\ Quarantinable communicable diseases are any of the 
communicable diseases listed in Executive Order 13295, as provided 
under section 361 of the Public Health Service Act (42 U.S.C. 264), 
42 CFR 71.1. The list of quarantinable communicable diseases 
currently includes cholera, diphtheria, infectious tuberculosis, 
plague, smallpox, yellow fever, viral hemorrhagic fevers (Lassa, 
Marburg, Ebola, Crimean-Congo, South American, and others not yet 
isolated or named), severe acute respiratory syndromes (including 
Middle East Respiratory Syndrome and COVID-19), influenza caused by 
novel or reemergent influenza viruses that are causing, or have the 
potential to cause, a pandemic, and measles. See Exec. Order 13295, 
68 FR 17255 (Apr. 4, 2003), as amended by Exec. Order 13375, 70 FR 
17299 (Apr. 1, 2005) and Exec. Order 13674, 79 FR 45671 (July 31, 
2014), 86 FR 52591 (Sep. 22, 2021).
    \6\ See supra note 1.
    \7\ Order Suspending the Right to Introduce Certain Persons from 
Countries Where a Quarantinable Communicable Disease Exists, 85 FR 
65806 (Oct. 16, 2020). The October Order replaced the Order 
Suspending Introduction of Certain Persons from Countries Where a 
Communicable Disease Exists, issued on March 20, 2020 (March Order), 
which was subsequently extended and amended. Notice of Order Under 
Sections 362 and 365 of the Public Health Service Act Suspending 
Introduction of Certain Persons from Countries Where a Communicable 
Disease Exists, 85 FR 17060 (Mar. 26, 2020); Extension of Order 
Under Sections 362 and 365 of the Public Health Service Act; Order 
Suspending Introduction of Certain Persons From Countries Where a 
Communicable Disease Exists, 85 FR 22424 (Apr. 22, 2020); Amendment 
and Extension of Order Under Sections 362 and 365 of the Public 
Health Service Act; Order Suspending Introduction of Certain Persons 
from Countries Where a Communicable Disease Exists, 85 FR 31503 (May 
26, 2020).
    \8\ Suspension of the right to introduce means to cause the 
temporary cessation of the effect of any law, rule, decree, or order 
pursuant to which a person might otherwise have the right to be 
introduced or seek introduction into the United States. 42 CFR 
71.40(b)(5).
    \9\ See supra note 2.
    \10\ POE and U.S. Border Patrol stations are operated by U.S. 
Customs and Border Protection (CBP), an agency within Department of 
Homeland Security (DHS).
    \11\ 86 FR 42828, 42841.
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    Three groups typically make up covered noncitizens--single adults 
(SA),\12\ individuals in family units (FMU),\13\ and unaccompanied 
noncitizen children (UC).\14\ UC encountered in the United States were 
specifically excepted from the August Order \15\ based on its explicit 
incorporation by reference of CDC's July Exception of UC.\16\ The 
August Order and July Exception distinguished the immigration 
processing available to SA and FMU from that available to UC.\17\ While 
all three groups are processed by U.S. Customs and Border Protection 
(CBP), a component of the Department of Homeland Security (DHS), 
following that initial intake, UC are referred to HHS' Office of 
Refugee Resettlement (ORR) for care. At both the CBP and ORR stages, UC 
receive special attention.
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    \12\ A single adult (SA) is any noncitizen adult 18 years or 
older who is not an individual in a ``family unit.'' 86 FR 42828, 
42830 at note 13.
    \13\ An individual in a family unit (FMU) includes any 
individual in a group of two or more noncitizens consisting of a 
minor or minors accompanied by their adult parent(s) or legal 
guardian(s). Id. at note 14.
    \14\ CDC understands UC to be a class of individuals similar to 
or the same as those individuals who would be considered 
``unaccompanied alien children'' (see 6 U.S.C. 279) for purposes of 
HHS Office of Refugee Resettlement custody, were DHS to make the 
necessary immigration determinations under Title 8 of the U.S. Code. 
86 FR 38717, 38718 at note 4.
    \15\ 86 FR 42828, 42829 at note 3.
    \16\ See supra note 4.
    \17\ See 86 FR 42828, 42835-37 (describing the processing of 
noncitizen SA and FMU by DHS components, CBP and ICE, under both 
regular Title 8 immigration and under an order pursuant to 42 U.S.C. 
265).
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    The series of CDC Orders issued under 42 U.S.C. 265, 268 and 42 CFR 
71.40 were intended to reduce the risk of COVID-19 introduction, 
transmission, and spread at POE and U.S. Border Patrol stations by 
significantly reducing the number and density of covered noncitizens 
held in these congregate settings and thereby reducing risks to U.S. 
citizens, U.S. nationals, lawful permanent residents, DHS/CBP personnel 
and noncitizens at the facilities, and local community healthcare 
systems. CDC has deemed the measures included in the CDC Orders 
necessary for the protection of public health during the ongoing COVID-
19 pandemic.
    In the August Order, CDC committed to reassessing the public health 
circumstances necessitating the Order at least every 60 days by 
reviewing the latest information regarding the status of the COVID-19 
public health emergency and associated public health risks, including 
migration patterns, sanitation concerns, and any improvement or 
deterioration of conditions at the U.S. borders.\18\ Following a 
Preliminary Injunction issued by the U.S. District Court for the 
Northern District of Texas ordering that the July Exception for UC and 
its incorporation into the August Order be enjoined,\19\ CDC determined 
that it was necessary to conduct an immediate reassessment with respect 
to UC. This reassessment takes into account the current status of the 
pandemic. For example, CDC recently released its COVID-19 Community 
Levels framework, which allows communities and individuals to make 
decisions and reduce COVID-19 mitigation measures as allowed by local 
context and unique needs.\20\ This was followed by an updated National 
COVID-19 Preparedness Plan, which lays out the roadmap to help the 
nation continue to fight COVID-19 in the future, while also allowing 
resumption of more normal routines.\21\
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    \18\ 86 FR 42828, 42841.
    \19\ See infra II.B.
    \20\ COVID-19 Community Levels, Centers for Disease Control and 
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/science/community-levels.html (updated Mar. 10, 2022).
    \21\ National COVID-19 Preparedness Plan--March 2022, available 
at https://www.whitehouse.gov/wp-content/uploads/2022/03/NAT-COVID-19-PREPAREDNESS-PLAN.pdf (last visited Mar. 9, 2022).
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    Based on the reassessment below, the CDC Director finds that there 
is no longer a serious danger of the introduction, transmission, and 
spread of COVID-19 into the United States as a result of entry of UC 
and that a suspension of the introduction of UC is not required in the 
interest of public health. The CDC Director has determined that 
suspension of entry of UC is not necessary to protect U.S. citizens, 
U.S. nationals, lawful permanent residents, personnel and noncitizens 
at POE and U.S. Border Patrol stations, or destination communities in 
the United States. In light of that determination, and as described 
below, CDC is hereby terminating the CDC Orders issued pursuant to 42 
U.S.C. 265, 268 and 42 CFR 71.40 as they apply to UC, effective 
immediately.

A. Public Health Landscape

    Since late 2019, SARS-CoV-2, the virus that causes COVID-19, has 
spread throughout the world, resulting in a pandemic. Since the 
beginning of the pandemic, the U.S. Government response has focused on 
taking actions and providing guidance based on the best available 
scientific information. As the waves of the pandemic have surged and 
ebbed, so too have actions taken in response to the pandemic. Earlier 
phases of the pandemic required extraordinary actions by the U.S. 
Government and society at large. However, epidemiologic data, 
scientific knowledge, and the availability of public health mitigation 
measures, vaccines, and therapeutics have permitted many of those early 
actions to be pulled back in favor of more nuanced, targeted, and 
narrowly-tailored guidance that provides a less restrictive means to 
prevent and control the SARS-CoV-2 virus and COVID-19.
    As of March 11, 2022, there have been over 450 million confirmed 
cases of COVID-19 globally, resulting in over six million deaths.\22\ 
The United States has reported over 79 million cases resulting in over 
960,000 deaths due to the disease \23\ and is currently averaging 
around 49,000 new cases of COVID-19 a day as of March 11, 2022.\24\
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    \22\ Coronavirus disease (COVID-19) pandemic, World Health 
Organization, https://covid19.who.int/ (last visited Mar. 11, 2022).
    \23\ COVID Data Tracker, Centers for Disease Control and 
Prevention, https://covid.cdc.gov/covid-data-tracker/#datatracker-home (last visited Mar. 11, 2022).
    \24\ United States COVID-19 Cases, Deaths, and Laboratory 
Testing (NAATs) by State, Territory, and Jurisdiction, Centers for 
Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#cases_community (last visited Mar. 11, 2022).
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B. Current Status of the COVID-19 Pandemic

    The highly infectious SARS-CoV-2 variant B.1.1.529 (Omicron) is 
responsible for the currently receding wave of the pandemic. The 
Omicron variant resulted in an extraordinary and unparalleled increase 
in COVID-19 cases around the world.\25\ The United

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States recorded its highest seven-day moving average number of cases on 
January 15, 2022.\26\ Following this unprecedented peak, the number of 
COVID-19 cases in the United States began to rapidly decrease, falling 
by 95% as of March 9, 2022.\27\ After a brief period of continued 
increases,\28\ deaths and hospitalizations also reversed course and 
began a swift descent.\29\ These welcomed changes were due, in part, to 
widespread population immunity \30\ and a generally lower overall risk 
of severe disease and are responsible for allowing the United States to 
return to more normal routines safely.\31\
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    \25\ Omicron was first reported to the World Health Organization 
(WHO) by South Africa on November 24, 2021, and on November 26, 
2021, WHO designated it a Variant of Concern (VOC). On November 30, 
2021, the U.S. also decided to classify Omicron as a VOC. This 
decision was based on a number of factors, including detection of 
cases attributed to Omicron in multiple countries, even among 
persons without travel history, transmission and replacement of 
Delta as the predominant variant in South Africa, changes in the 
spike protein of the virus, and concerns about potential decreased 
effectiveness of vaccination and treatments.
    \26\ See Trends in Number of COVID-19 Cases and Deaths in the 
U.S. Reported to CDC, by State/Territory, Centers for Disease 
Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#trends_dailycases, citing a seven-day moving average of 809,202 
cases on January 15, 2022 (last updated Mar. 9, 2022).
    \27\ Id. (noting a peak of 809,204 seven-day moving average 
number of cases to 40,433 seven-day moving average number of cases 
on March 7, 2022).
    \28\ COVID Data Tracker Weekly Review: Stay Up to Date--
Interpretive Summary for Jan. 28, 2022, Centers for Disease Control 
and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/01282022.html (Jan. 28, 2022).
    \29\ See New Admissions of Patients with Confirmed COVID-19, 
United States, Centers for Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions (last 
updated Mar. 10, 2022); see also supra note 25.
    \30\ In addition to vaccine-induced immunity, studies have 
consistently shown that infection with SARS-CoV-2 lowers an 
individual's risk of subsequent infection and an even lower risk of 
hospitalization and death. National estimates of both vaccine- and 
infection-induced antibody seroprevalence have been measured among 
blood donors; as of December 2021 these measures demonstrated 94.7% 
of persons 16 years and older showed antibody seroprevalence for 
COVID-19. Science Brief: Indicators for Monitoring COVID-19 
Community Levels and Making Public Health Recommendations, Centers 
for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/indicators-monitoring-community-levels.html (updated Mar. 4, 2022); Nationwide COVID-19 Infection- 
and Vaccination-Induced Antibody Seroprevalence (Blood donations), 
Centers for Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#nationwide-blood-donor-seroprevalence (last 
updated Feb. 18, 2022).
    \31\ Transcript for CDC Media Telebriefing: Update on COVID-19, 
Centers for Disease Control and Prevention, https://www.cdc.gov/media/releases/2022/t0225-covid-19-update.html (Feb. 25, 2022). 
COVID-19 vaccines are highly effective against severe illness and 
death. Widespread uptake of these vaccines, coupled with higher 
rates of infection-induced immunity at the population level, as well 
as the broad availability of mitigation measures and effective 
therapeutics have moved the pandemic to a different phase. See also 
State of the Union Address, https://www.whitehouse.gov/state-of-the-union-2022/_ (Mar. 1, 2022).
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1. Community COVID-19 Levels
    During the first four waves of the pandemic, CDC relied on a 
particular formula to calculate community transmission levels and 
update COVID-19 prevention strategies accordingly.\32\ These indicators 
reflected the goal of limiting transmission in anticipation of vaccines 
becoming available.\33\ The CDC Director examined these indicators in 
conducting the public health assessment for the August Order.\34\
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    \32\ In September 2020, CDC released the Indicators of Community 
Transmission framework, which incorporated two metrics to define 
community transmission: Total new cases per 100,000 persons in the 
past seven days, and percentage of Nucleic Acid Amplification Test 
results that are positive during the past seven days. CDC also 
encouraged local decision-makers to also assess the following 
factors, in addition to levels of SARS-CoV-2, to inform the need for 
layered prevention strategies across a range of settings: Health 
system capacity, vaccination coverage, capacity for early detection 
of increases in COVID-19 cases, and populations at risk for severe 
outcomes from COVID-19. See Christie A, Brooks JT, Hicks LA, et al. 
Guidance for Implementing COVID-19 Prevention Strategies in the 
Context of Varying Community Transmission Levels and Vaccination 
Coverage. MMWR Morb Mortal Wkly Rep. ePub: 27 July 2021. DOI: http://dx.doi.org/10.15585/mmwr.mm7030e2.
    \33\ Id.
    \34\ Supra note 1.
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    In February 2022, given increased levels of population immunity, 
available therapies, and overall milder disease associated with the 
Omicron variant,\35\ CDC released a new framework, ``COVID-19 Community 
Levels,'' reflecting a shift in focus from eliminating SARS-CoV-2 
transmission toward disease control and infrastructure protection.\36\ 
This new framework examines three currently relevant metrics: New 
COVID-19 hospital admissions per 100,000 population in the past seven 
days, the percent of staffed inpatient beds occupied by patients with 
COVID-19, and total new COVID-19 cases per 100,000 population in the 
past seven days.\37\ CDC determined that data on disease severity and 
healthcare system strain complement case rates, and these data together 
are more informative for public health recommendations for individual, 
organizational, and jurisdictional decisions than data on community 
transmission rates alone.\38\ This comprehensive approach to assessing 
COVID-19 Community Levels can inform decisions about layered COVID-19 
prevention strategies, including vaccination and masking to reduce 
medically significant disease and limit strain on the healthcare system 
and other societal functions.\39\
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    \35\ Supra note 31.
    \36\ Indicators for Monitoring COVID-19 Community Levels and 
Implementing Prevention Strategies, Centers for Disease Control and 
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/downloads/science/Scientific-Rationale-summary_COVID-19-Community-Levels_2022.02.23.pptx (Feb. 23, 2022).
    \37\ New COVID-19 admissions and the percent of staffed 
inpatient beds occupied represent the current potential for strain 
on the health system, while data on new cases acts as an early 
warning indicator of potential increases in health system strain in 
the event of a COVID-19 surge. Community vaccination coverage and 
other local information, like early alerts from surveillance, such 
as through wastewater or the number of emergency department visits 
for COVID-19, when available, can also inform decision making for 
health officials and individuals. Supra note 21.
    \38\ Supra note 31.
    \39\ Id.
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    Using these data, the COVID-19 Community Levels for each county are 
classified as low, medium, or high. CDC recommends using county COVID-
19 Community Levels to help determine which mitigation measures, such 
as screening, testing, and mask use, should be implemented within a 
community.\40\ As of March 10, 2022, 72.7% of U.S. counties are 
classified at the low COVID-19 Community Level, 21.2% of U.S. counties 
are classified at the medium COVID-19 Community Level, and 6% of U.S. 
counties are classified at the high COVID-19 Community Level.\41\ 
Furthermore, 82.8% of the U.S. population lives in counties classified 
as ``low,'' 15% live in counties classified as ``medium,'' and 2.2% 
live in counties classified as ``high.'' \42\
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    \40\ See supra note 21.
    \41\ COVID-19 by County, Centers for Disease Control and 
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/your-health/covid-by-county.html (last updated Mar. 10, 2022). Furthermore, 
82.8% of the U.S. population lives in counties classified as 
``low,'' 15% live in counties classified as ``medium,'' and 2.2% 
live in counties classified as ``high.''
    \42\ Per internal CDC calculations.
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2. Information Specific to UC
    Since the beginning of the pandemic, CBP has maintained myriad 
COVID-19 mitigation efforts in order to protect noncitizens and its 
workforce.\43\ The

[[Page 15247]]

DHS Office of the Chief Medical Officer has worked with local community 
partners whose work is critical to moving individuals safely out of CBP 
custody and through the appropriate immigration pathway. Through these 
partnerships, DHS has supported state, local, tribal, and territorial 
partners and NGOs in developing robust COVID-19 testing and quarantine 
programs along the Southwest Border. In addition, vaccine uptake among 
the CBP workforce has reached approximately 88% among personnel on the 
U.S.-Mexico border.
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    \43\ These mitigation efforts include installing plexiglass 
dividers in facilities, enhancing ventilation systems, adhering to 
CDC cleaning and disinfection guidance, and providing masks to 
migrants, as well as providing PPE to CBP personnel. These measures 
generally follow the infection prevention control referred to as the 
hierarchy of controls. See Hierarchy of Controls, Centers for 
Disease Control and Prevention, available at https://www.cdc.gov/niosh/topics/hierarchy/default.html (last visited Mar. 9, 2022). The 
hierarchy of controls is used as a means of determining how to 
implement feasible and effective control solutions. The hierarchy is 
outlined as: (1) Elimination (physically remove the hazard); (2) 
Substitution (replace the hazard); (3) Engineering Controls (isolate 
people from the hazard); (4) Administrative Controls (change the way 
people work); and (5) PPE (protect people with Personal Protective 
Equipment). CBP also continues to update the CBP Job Hazard Analysis 
and the CBP COVID-19 toolkit based on the latest relevant public 
health guidance.
---------------------------------------------------------------------------

    CDC understands that in the months between the issuance of the 
August Order and now, CBP has implemented a robust set of COVID-19 
mitigation protocols that have substantially reduced the potential for 
COVID-19 spread among UC in CBP and ORR facilities. For many months, UC 
had been tested as they were leaving CBP facilities, prior to transfer 
to large ORR facilities. On August 25, 2021, CBP began testing UC 
during CBP's intake process as well, prior to placing UC in congregate 
settings. Intake testing of UC started with those encountered in the 
Rio Grande Valley (RGV) Sector of the U.S. Border Patrol--the Sector 
that has encountered more than 54% percent of UC over the past 12 
months. This model has subsequently been expanded to other high-
encounter Border Patrol Sectors, including Tucson (January 26, 2022), 
El Paso (February 3, 2022), and Del Rio (February 3, 2022). Taken 
together, these Sectors account for over 87% of UC encounters over the 
past 12 months--indicating that the large majority of UC are now going 
through this intake processing protocol.
    Pursuant to these protocols, UC encountered by Border Patrol agents 
are tested for COVID-19 in a sheltered, open air location during intake 
processing prior to entering congregate settings, thus ensuring the 
ability to segregate UC by test results, provide appropriate care to UC 
who have tested positive, and minimize further spread. UC that test 
positive for COVID-19 are cohorted together and kept physically 
separate from UC who test negative. UC who test positive for COVID-19 
go through a streamlined designation and referral process for ORR 
placement that is substantially faster than the process for other UC, 
generally resulting in transfers to ORR within 8 to 12 hours of 
encounter. UC who test positive are transported together (and 
separately from other UC) to designated ORR facilities that are 
designed to provide robust care for COVID-19 positive children and to 
minimize the chance of transmission. UC who test negative go through 
the normal processing, as applied to UC, and are tested again when they 
are discharged from CBP facilities prior to transport to large ORR 
facilities. UC who test positive at this second stage are routed to 
designated ORR facilities to minimize the potential for COVID-19 
spread. All UC are subject to masking requirements while in CBP 
custody.
    Since the inception of these intake processing protocols, CBP has 
tested more than 45,000 UC with an overall positivity rate of 10%. 
Consistent with the decline in COVID-19 positivity rates more 
generally, the UC overall positivity rate has been declining. During 
the first week of March 2022, the overall positivity rate for UC in CBP 
custody was around 6%, down from a high of nearly 20% in early February 
2022.
    CBP's intake processing protocols have also led to a significant 
decrease in COVID-19 positivity rates for UC in ORR care. Following the 
start of COVID-19 testing for UC as part of the CBP intake process in 
August, there was a significant decrease in the proportion of children 
referred to ORR from the RGV Sector testing positive for COVID-19 
within the first four days of ORR custody, as compared to the pre-
testing period. As of March 5, 2022, COVID-19 positivity rates in ORR 
shelter facilities ranged from 4% to 15%--a number that includes those 
in facilities designed specifically to house COVID-positive UC. Once UC 
are transferred to ORR care, ORR has in place a range of other 
mitigation measures, as detailed below, to include universal and proper 
wearing of masks, physical distancing, frequent hand washing, cleaning 
and disinfection, improved ventilation, staff vaccination, and 
cohorting UC according to their COVID-19 test status. Due to 
operational and facility constraints, CBP reports that it is not able 
to replicate this robust COVID-19 testing and isolation program for SA 
and FMU in its custody.

II. Public Health Reassessment

A. Changing Public Health Conditions

    CDC continually reassesses the development of the COVID-19 pandemic 
and the need for continued measures under 42 U.S.C. 265, 268 and 42 CFR 
71.40, the authorities that support the CDC Orders.\44\ The public 
health reassessment for UC described herein is based upon the most 
recent science and data available to CDC. Based upon these data, CDC 
has determined that while the use of the CDC Orders to reduce the 
numbers of noncitizens held in congregate settings in POEs and Border 
Patrol stations has been part of the layered COVID-19 mitigation 
measures over the last two years, less restrictive measures than those 
outlined in prior CDC Orders are now available with respect to UC to 
mitigate the introduction, transmission, and spread of COVID-19. While 
the CDC Orders provided an important COVID-19 mitigation measure during 
certain phases of the pandemic by reducing the number of noncitizens 
held in congregate settings, other public health measures such as 
workforce testing, widespread vaccination, variant action plans, and 
mitigation measures specifically available for the UC population, are 
now available to provide necessary public health protection for 
noncitizens, Americans, and the DHS workforce.
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    \44\ See supra note 9.
---------------------------------------------------------------------------

    CDC believes that the widespread availability of tests for the 
general public, in addition to other methods of surveillance, will 
permit the workforce to rapidly institute necessary mitigation measures 
in the event that cases of COVID-19 are detected. At the same time, 
vaccination rates are increasing both at home and abroad. Vaccination 
among the American public and the DHS workforce in particular has been 
largely successful and, as stated in the August Order, widespread 
vaccination of federal employees and personnel in congregate settings 
at POE and U.S. Border Patrol stations is a critical step toward the 
normalization of border operations.\45\ Since August 2021, vaccination 
rates in the countries of origin for the current majority of UC have 
also increased dramatically.\46\ Such increased global vaccination 
rates, as well as higher rates of infection-induced immunity globally, 
provide additional layers of protection. As a public health matter, CDC 
strongly recommends that all individuals,

[[Page 15248]]

including noncitizens, receive a COVID-19 vaccine. This aligns with 
CDC's emphasis on global vaccination. Even if full vaccination cannot 
be assured, CDC believes vaccination of as many people as possible 
provides some level of protection against severe illness and 
hospitalization, thereby protecting citizens, noncitizens and the U.S. 
healthcare system.
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    \45\ CBP most recently reported vaccination rates between 75% 
and 91% among its U.S. Border Patrol and Office of Field Operations 
personnel.
    \46\ El Salvador, Guatemala, and Honduras constitute the top 
three countries of origin for UC. Rates of vaccination for each 
country are as follows: El Salvador 65% fully vaccinated, 4.8% only 
partly vaccinated; Guatemala: 31% fully vaccinated, 8.5% only partly 
vaccinated; Honduras: 45% fully vaccinated, 8.5% only partly 
vaccinated. Coronavirus (COVID-19) Vaccinations, Our World in Data, 
https://ourworldindata.org/covid-vaccinations (last visited Mar. 11, 
2022).
---------------------------------------------------------------------------

    The August Order also highlighted the threat posed by emerging 
variants and the potential for a future vaccine-resistant variant, 
either of which could negatively impact U.S. communities and local 
healthcare resources.\47\ Based in part on these threats, CDC concluded 
at that time that an Order under 42 U.S.C. 265 should remain in place, 
pending further improvements in the public health situation, and 
subject to continual assessment.\48\ Since the August Order, public 
health officials have learned a great deal about variants and how best 
to respond to them. In response to Omicron, the U.S. Government 
developed a comprehensive plan for monitoring COVID-19, swiftly 
adapting public health tools to combat a new variant, and deploying 
emergency resources to help communities.\49\ This plan includes a 
commitment to ensuring that variant surveillance, vaccines, tests, and 
treatments can be updated and deployed quickly.\50\
---------------------------------------------------------------------------

    \47\ 86 FR 42828, 42837.
    \48\ Id.
    \49\ See supra note 22.
    \50\ Id.
---------------------------------------------------------------------------

    As noted above, a significant majority of the U.S. population 
currently lives in an area classified as having a ``low'' COVID-19 
Community Level,\51\ meaning most of the population can operate under 
more relaxed COVID-19 mitigation strategies.\52\ Noteworthy for 
purposes of this reassessment, as of March 10, 2022, of the 24 U.S. 
counties along the U.S.-Mexico border, 91% of counties on the Southwest 
Border are now classified as having a ``low''or ``medium'' COVID-19 
Community Level.\53\
---------------------------------------------------------------------------

    \51\ See supra note 42.
    \52\ See supra note 31.
    \53\ See supra note 41 (noting 54% (n=13) of counties along the 
U.S.-Mexico border are considered ``Low'' (San Diego County, CA; 
Imperial County, CA; Luna, NM; Dona Ana County, NM; Otero County, 
NM; Eddy County, NM; Lea County, NM; Presidio County, TX; Brewster 
County, TX; Terrell County, TX; Webb County, TX; Zapata County, TX; 
Cameron County, TX); 37% of counties (n=9) along the U.S.-Mexico 
border are classified as having COVID-19 community levels '': Pima 
County, AZ, Santa Cruz County, AZ; Cochise County, AZ; El Paso 
County, TX; Hudspeth County, TX; Val Verde County, TX; Kinney 
County, TX; Maverick County, TX; and Starr County, TX); and 8% of 
counties (n=2) along the U.S.-Mexico border are classified as having 
COVID-19 community levels: Yuma, County, AZ and Hidalgo County, TX).
---------------------------------------------------------------------------

B. Public Health Factors Specifically Relevant to UC Population

    For all the reasons set forth above, it is CDC's assessment that 
there is no longer a public health rationale to apply to UC the August 
Order and all related prior orders issued pursuant to 42 U.S.C. 265, 
268 and 42 CFR 71.40. Moreover, as explained in the July Exception, UC 
are less likely than FMU and SA to introduce COVID-19.\54\ In addition, 
UC as a population are subject to unique care within CBP and ORR 
facilities.\55\ These facilities are able to provide robust mitigation 
measures that have proven to be effective in managing COVID-19 and 
minimizing the risk of spread. These reasons serve as an additional 
basis to those outlined herein for immediately terminating the August 
Order and all prior Orders as to UC.
---------------------------------------------------------------------------

    \54\ 86 FR 38717 (July 22, 2021).
    \55\ UC not subject to an order under 42 U.S.C. 265 are 
generally processed under immigration processes under Title 8 of the 
U.S. Code and referred from CBP to ORR for care and custody, 
according to the usual legal framework governing such referrals. 
Upon transfer to ORR custody, UC are transported to facilities that 
operate under cooperative agreements or contracts with HHS and must 
meet ORR requirements to ensure a high level of quality, child-
focused care by appropriately trained staff. At these facilities, 
case managers work to identify and ultimately place UC with vetted 
sponsors (usually family members within the United States). 86 Fed. 
Red. 38717, 38719 (July 22, 2020).
---------------------------------------------------------------------------

    Following the temporary exception of UC from expulsion in January 
2021, CDC formally excepted UC from the then-in-place October 2020 
Order in July 2021. The July Exception was based on a public health 
assessment of the specific treatment of UC and the care available to 
them through ORR and was fully incorporated by reference into CDC's 
subsequent August Order.\56\
---------------------------------------------------------------------------

    \56\ See supra at note 1.
---------------------------------------------------------------------------

    On March 4, 2022, the U.S. District Court for the Northern District 
of Texas granted a motion for Preliminary Injunction brought by the 
State of Texas and ordered that the July Exception for UC and its 
incorporation into the August Order be enjoined, with the injunction 
stayed through Friday, March 11, 2022. Even prior to that court order, 
CDC has been reviewing whether the August Order should remain in place 
as part of its regular public health reassessment every 60 days. 
Although CDC continues to complete the next regularly scheduled 
reassessment, CDC accelerated its ongoing and review determined an 
immediate completion of the assessment of the current public health 
situation with regard to UC was necessary due to the impending 
effective date of the injunction. Based on that reassessment, and after 
carefully considering the issues raised in the court's order, CDC has 
determined that the current public health situation does not support 
the application of the August Order to UC. Per the terms of 42 U.S.C. 
265 itself, this lack of public health justification means the 
suspension of the right to introduce UC is not an available measure. In 
addition, the COVID-19 public health mitigation measures already in 
place for UC described herein reinforce CDC's determination that the 
August Order and all related prior orders issued pursuant to 42 U.S.C. 
265, 268 and 42 CFR 71.40 should be terminated as to UC.
    Following the temporary exception of UC from the October Order in 
January 2021, the United States experienced an increase in the number 
of UC arriving daily at the Southwest Border. In response, HHS and ORR, 
in conjunction with the Federal Emergency Management Agency (FEMA) and 
with the assistance of the Department of Defense, greatly expanded the 
capacity for intake and processing of UC. At its height, ORR had 
capacity of over 30,000 beds \57\ and nearly 23,000 children \58\ were 
in its care. Currently, ORR has a capacity of nearly 14,000 beds and 
fewer than 10,000 children are in ORR care as of March 9, 2022.\59\ ORR 
has successfully processed and discharged over 159,000 UC since January 
2021.\60\ The successful efforts to expand capacity for UC have 
resulted in sufficient capacity at ORR sites--both along the border and 
in the interior--and significantly reduced the length of time that UC 
remain in CBP custody. As of March 11, 2022, the average time a UC 
remained in CBP custody before transferring to ORR custody was 23 
hours, and no UC have been in CBP custody for over 72 hours.\61\ This 
represents a substantial improvement from early 2021.\62\ While the 
number of UC encountered may remain at elevated levels, expanded ORR 
capacity and improved processing methods have resulted in UC remaining 
in CBP custody for shorter periods of time.
---------------------------------------------------------------------------

    \57\ Per May 2021 monthly data from ORR.
    \58\ Per April 2021 monthly data from ORR.
    \59\ Per data from ORR.
    \60\ Id. From January 2021 through February 2022, 15,492 UC have 
been discharged from ORR care.
    \61\ As reported by ORR.
    \62\ For comparison, on March 29, 2021, nearly 5,500 UC were in 
CBP custody, with 3,540 of those UC in custody for longer than 72 
hours; as of March 31, 2021, the average time in CBP custody for UC 
was 131 hours.
---------------------------------------------------------------------------

    With CDC's assistance and guidance, ORR also has implemented COVID-
19 testing protocols for UC in its care and

[[Page 15249]]

continues to practice other mitigation measures to prevent and curtail 
transmission of the SARS-CoV-2 virus among UC in its care. These 
strategies include universal and proper wearing of masks, physical 
distancing, frequent hand washing, cleaning and disinfection, improved 
ventilation, staff vaccination, and cohorting UC according to their 
COVID-19 test status. Per a CDC recommendation, ORR conducts serial 
testing of staff, as feasible, to allow early detection of a possible 
outbreak.\63\ ORR contract and grantee staff working in facilities 
serving UC are encouraged to receive the COVID-19 vaccine.\64\ As 
advised by CDC, ORR also restricts movement of unvaccinated personnel 
between facilities to reduce potential outbreaks resulting from 
transfer of unvaccinated staff between shelters. These measures help 
reduce the spread of COVID-19 among UC prior to the UC being discharged 
to vetted sponsors in U.S. communities.
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    \63\ In ORR facilities where the risk of transmission is 
moderate to high, public health officials working collaboratively 
with ORR facilities can determine the appropriateness of offering 
screening and repeat testing of randomly selected asymptomatic staff 
and children at the facility, as feasible, to identify cases and 
prevent secondary transmission.
    \64\ Additional criteria (e.g., continued symptom monitoring and 
correct and consistent wearing of masks) should be met by ORR as 
outlined on CDC's website. See Science Brief: Options to Reduce 
Quarantine for Contacts of Persons with SARS-CoV-2 Infection Using 
Symptom Monitoring and Diagnostic Testing, Centers for Disease 
Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/more/scientific-brief-options-to-reduce-quarantine.html (last 
updated Dec. 2, 2020).
---------------------------------------------------------------------------

    In addition to the mitigation measures at ORR facilities described 
above, CDC provided updated recommendations to ORR regarding the 
vaccination of UC ages 5 and older.\65\ ORR subsequently approved the 
administration of COVID-19 vaccine for age-eligible children. Under ORR 
care, children ages 5 and over are offered a COVID-19 vaccine as soon 
as possible, as long as there are no contraindications and vaccination 
does not delay unification of UC with sponsors. Of the total population 
of UC in ORR care, approximately 98% are age-eligible for vaccination 
and, as of March 8, 2022, ORR has administered at least one dose of the 
COVID-19 vaccine to 62,644 UC and a second dose to 15,994, with a 
refusal rate under 1%.\66\ CDC considers these vaccination efforts to 
be a critical risk reduction measure that supports excepting UC from 
the August Order.
---------------------------------------------------------------------------

    \65\ Field Guidance #17--COVID-19 Vaccination of Unaccompanied 
Children (UC) in ORR Care, Internal Document (CDC memo to ORR, 
revised Nov. 8, 2021).
    \66\ Per data reported by ORR.
---------------------------------------------------------------------------

    Although 20,682 UC total have tested positive for COVID-19 while at 
ORR shelters during the period of March 24, 2020 to March 3, 2022, 
20,304 of those UC testing positive have successfully completed medical 
isolation, with few requiring medical treatment. Similarly, 13,148 
cumulative COVID-19 cases have been reported from Emergency Intake 
Sites (EIS) as of March 2, 2022; however, only approximately 37 of the 
UC in this EIS group have required hospitalization.\67\
---------------------------------------------------------------------------

    \67\ As reported by ORR.
---------------------------------------------------------------------------

    These numbers indicate that the risk of overburdening the local 
healthcare systems with UC presenting with severe COVID-19 disease 
remains low. Based on the robust network of ORR care facilities and the 
testing and medical care available therein, as well as COVID-19 
mitigation protocols that include vaccination for personnel and 
eligible UC, there is very low likelihood that processing UC in 
accordance with existing Title 8 immigration procedures will result in 
undue strain on the U.S. healthcare system or healthcare resources. 
Moreover, UC released to a vetted sponsor do not pose a significant 
level of risk for COVID-19 spread into the community because they are 
released after having undergone testing, quarantine or isolation, and 
vaccination when possible. UC sponsors also are provided with 
appropriate medical and public health direction.
    Based on the public health reassessment set forth above, as well as 
the successful COVID-19 mitigation measures that were and continue to 
be in place for UC, there is no public health basis to resume the 
suspension of introduction of UC. Resuming the suspension of 
introduction of UC would not significantly decrease the risk of the 
introduction, transmission, or spread of COVID-19 at POE or Border 
Patrol stations. Nor does the introduction of UC into the United States 
pose a serious danger of the introduction of COVID-19 such that 
applying the August Order to UC is required in the interest of the 
public health.

III. Legal Considerations

A. Concerns Raised by the District Court

    In enjoining CDC from enforcing the exception for UC set forth in 
the July Exception and August Order, the court in Texas v. Biden found 
that the July Exception and August Order likely were arbitrary or 
capricious in violation of the Administrative Procedure Act (APA) for 
several reasons.\68\ CDC takes the court's concerns seriously and has 
considered each of them in issuing this Order. First, the court stated 
that ``[t]he record before the Court demonstrates that nothing changed 
between the October 2020 Order, the July 2021 [Order], and the August 
2021 Order. The COVID-19 virus (still) remains a threat.'' \69\ 
Regardless of the public health conditions leading up to the July 
Exception and August Order, CDC's most recent reassessment of the 
status of the COVID-19 pandemic and associated public health risks 
makes clear that circumstances have now changed significantly. Case 
counts and hospitalization rates are decreasing, vaccination rates are 
increasing, and the availability of testing and treatments also are 
increasing. These changes and continuing trends in the public health 
conditions since the conclusion of CDC's previous reassessment support 
the decision to terminate the Orders as to UC immediately.
---------------------------------------------------------------------------

    \68\ 2022 WL 658579, at *16-*18.
    \69\ Id. at *16.
---------------------------------------------------------------------------

    Additionally, the court found that the July Exception and August 
Order did not adequately explain why UC were unlikely to spread COVID-
19 to others when they spend, on average, more than a day \70\ in 
congregate settings at DHS facilities ``where they can expose other 
detainees, DHS personnel, and American citizens and residents to 
whatever viruses they are carrying.'' \71\ CDC has considered the 
court's concern and concluded that because of the overall decrease in 
cases of COVID-19 throughout the country, including at the Southwest 
Border, coupled with the increase in vaccination rates, there is an 
extremely low likelihood that intake processing of UC in DHS facilities 
will pose a serious danger to the public health. Importantly, vaccines 
are now widely available and vaccination rates have increased among the 
American public in general and the DHS workforce in particular, as well 
as in the countries of origin for the current majority of UC.\72\ 
Additionally, CBP continues to implement a variety of mitigation 
efforts to prevent the spread of COVID-19 in POE and U.S. Border Patrol 
facilities, as detailed above.\73\
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    \70\ In contrast, SA and FMU spend, on average, 2-3 days in 
congregate settings at the border.
    \71\ Id. at *16.
    \72\ See COVID-19 Vaccinations in the United States, Centers for 
Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-people-onedose-pop-5yr (updated Mar. 11, 
2022).
    \73\ See supra note 43.
---------------------------------------------------------------------------

    Next, the court found that ``instead of trying to prevent [UC] from 
spreading the viruses they are potentially carrying to the interior of 
the United States, the Government chose to send [UC] away

[[Page 15250]]

from the facilities where the Government could monitor them and their 
health.'' \74\ CDC clarifies that generally DHS is required by the 
Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) to 
promptly transfer UC to ORR. Even after such transfer, UC remain in 
U.S. Government custody through ORR's network of providers where they 
are subject to robust COVID-19-mitigation protocols, including 
distancing, testing, masking, quarantining, cleaning and disinfection, 
improved ventilation, staff vaccination, and available vaccination for 
noncitizen children.\75\ These mitigation measures allow ORR to 
identify COVID-19 cases, and the vast majority of UC who tested 
positive for COVID-19 while at ORR shelters successfully completed 
medical isolation. Unlike other covered noncitizens apprehended at the 
border, UC in ORR custody undergo COVID-19 testing twice before being 
released to the community. Accordingly, there very low risk that UC are 
COVID-19 positive when they are released into the community. Moreover, 
under ORR care, eligible children are offered a COVID-19 vaccine as 
soon as possible, as long as there are no contraindications and 
vaccination does not delay unification of UC with vetted sponsors. When 
UC are released to sponsors, ORR provides their sponsors with 
appropriate medical and public health direction, including information 
on how to obtain additional vaccination doses as needed as well as 
quarantine and isolation guidance when appropriate.
---------------------------------------------------------------------------

    \74\ Texas, 2022 WL 658579, at *16.
    \75\ See supra II.B.
---------------------------------------------------------------------------

    The court also found that the July Exception and August Order did 
not explain how ``preventing the spread of COVID-19 between'' UC can 
also ``prevent the spread of COVID-19 from the interior of the United 
States.'' \76\ CDC has considered the court's concern and determined 
that preventing the spread of COVID-19 between UC does prevent the 
spread of COVID-19 into the interior because the fewer UC that test 
positive for COVID-19, the lower the transmission rates will be from 
any UC who is COVID-19 positive into the interior. In any event, as 
discussed above, CDC has determined that, given the testing of UC that 
occurs prior to transfer to ORR, as well as the robust mitigation 
measures implemented by CBP since the August Order and in place at ORR 
facilities, UC present very little risk of spreading of COVID-19 when 
they are released to their sponsors.
---------------------------------------------------------------------------

    \76\ Id.
---------------------------------------------------------------------------

    The court also noted a prior U.S. Border Patrol Chief's statement 
that CDC adopted the exception for UC before it issued the February 
2021 Order pausing application of the October Order to UC. From this, 
the court concluded that CDC's July Exception and August Order 
constituted a ``departure from prior policy.'' Regardless of whether 
there had been any defects in a prior unannounced decision or in the 
February 2021 Order that affected the July Exception and August Order, 
CDC is now providing a fuller explanation of its decision to terminate 
the Orders with respect to UC immediately given the outcome of its most 
recent public-health reassessment.

B. Absence of Reliance Interests

    As noted above, in issuing its July Exception, CDC considered the 
impact of excepting UC from the October 2020 Order on the local 
healthcare systems in light of, among other things, data showing that 
the number of UC presenting with severe COVID-19 disease remained 
low.\77\ The U.S. District Court for the Northern District of Texas has 
found, however, that neither the July Exception nor the August Order 
``indicate that the agency considered all of Texas's potential reliance 
interests.'' \78\ In issuing this Order, CDC has considered whether 
state or local governments, or their subdivisions, have any 
``legitimate reliance'' \79\ interests on the inclusion of UC in an 
Order under 42 U.S.C. 265. No state or local government could have any 
reliance interest relating to the exclusion of UC arising from the 
August 2021 Order since it expressly excepted UC.\80\ Because 
expulsions of UC under 42 U.S.C. 265 have not been occurring since at 
least February 2021, no State could rely on UC being covered by the 
August Order, and CDC does not see a need to provide advance notice 
that it will continue excepting UC. We therefore focus on the October 
2020 Order and its predecessors. CDC finds it useful to distinguish 
between potential long-term and short-term reliance interests.
---------------------------------------------------------------------------

    \77\ See 86 FR at 38,720.
    \78\ Texas v. Biden, No. 4:21-cv-0579-P, Doc. 100 at 31.
    \79\ See Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 
140 S. Ct. 1891, 1913 (2020).
    \80\ See 86 FR at 42838 (``As outlined in the July Exception and 
incorporated herein, CDC is fully excepting UC from this Order.'').
---------------------------------------------------------------------------

    On the issue of long-term reliance interests, CDC has determined 
that no state or local government could be said to have legitimately 
relied on the October 2020 Order to implement a long-term or permanent 
change to its operations because the October 2020 Order was by its very 
nature a short-term order subject to change at any time in response to 
an evolving public health crisis and is subject to regular review by 
CDC. Section 265 may be invoked only if there is a ``serious danger of 
the introduction of [a communicable] disease into the United States, 
and [if] this danger is so increased by the introduction of persons or 
property from such country that a suspension of the right to introduce 
such persons and property is required in the interest of the public 
health.'' \81\ The statute may be invoked only ``for such period of 
time as [CDC] may deem necessary'' to avert such a danger.\82\ Thus, 
both Section 265 and HHS's implementing regulation recognize that in 
prohibiting the introduction of covered persons ``in whole or in 
part,'' \83\ a CDC Order is effective ``only for such period of time 
that the Director deems necessary to avert the serious danger of the 
introduction of a quarantinable communicable disease.'' \84\
---------------------------------------------------------------------------

    \81\ 42 U.S.C. 265.
    \82\ Id.
    \83\ Id.
    \84\ 42 CFR 71.40(a).
---------------------------------------------------------------------------

    Accordingly, CDC's initial order issued under 42 U.S.C. 265, 268 
and 42 CFR 71.40 in March 2020 made clear that the order represented a 
``temporary suspension of the introduction of [covered] persons into 
the United States'' \85\ and that the order would remain effective only 
for ``30 days, or until [CDC] determine[s] that the danger of further 
introduction of COVID-19 into the United States has ceased to be a 
serious danger to the public health, whichever is shorter.'' \86\ The 
March 2020 Order was subsequently extended on April 20, 2020 and 
amended on May 19, 2020. The fact that the policy was frequently 
reviewed should have underscored that the use of the Section 265 
authority was a temporary measure subject to change at any time. The 
October 2020 Order again confirmed this understanding of CDC's 
authority under 42 U.S.C. 265, 268 and 42 CFR 71.40, noting the 
``temporary'' nature of the suspension of the introduction of covered 
persons, and the fact that the Order would be reviewed every 30 days 
based on ``the latest information regarding the status of the COVID-19 
pandemic and associated public health risks to ensure that the Order 
remains necessary,'' and that CDC ``retain[ed] the authority to extend, 
modify, or

[[Page 15251]]

terminate the Order, or implementation of [the] Order, at any time as 
needed to protect public health.'' \87\
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    \85\ 85 FR at 17061 (emphasis added).
    \86\ 85 FR at 17068.
    \87\ 85 FR at 65807, 65812.
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    In addition, in November 2020, the United States District Court for 
the District of Columbia enjoined the expulsion of UC on the ground 
that Section 265 likely did not authorize such expulsions.\88\ Although 
the government appealed the injunction and obtained a stay of the 
injunction in January 2021,\89\ there remained legal uncertainty over 
the government's authority to apply Section 265 to UC, thus further 
rendering it unreasonable for any state or local government to act in 
long-term reliance on the continued expulsion of UC under Section 265. 
Moreover, as a factual matter, CDC is not aware of, nor has any state 
or local government brought to CDC's attention, any reasonable or 
legitimate reliance on the continued expulsion of UC under 42 U.S.C. 
265. For example, no state or local government has indicated that it 
altered its operations, spending, or regulation in light of the prior 
application of Section 265 to UC. The total number of UC processed 
under Title 8 remains relatively small, rendering it unlikely that 
state or local governments would adversely rely on the application of 
Section 265 to UC by making any material changes.
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    \88\ See P.J.E.S. v. Wolf, 502 F. Supp. 3d 492 (D.D.C. 2020).
    \89\ Order, P.J.E.S. v. Mayorkas, et al., No. 20-5357 (D.C. Cir. 
Jan. 29, 2021), Doc. No. 1882899.
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    Additionally, CDC does not believe that the presence of UC poses a 
public health risk sufficient to justify continued application of 42 
U.S.C. 265 to UC. Because 42 U.S.C. 265 authorizes the CDC to prevent 
the introduction of noncitizens only when necessary to address a public 
health risk, no state or local government could rely on Section 265 
continuing to be applied in the absence of such a risk. Therefore, 
CDC's considered judgment is that no state or local government 
currently has a long-term reliance interest in the continued expulsion 
of UC under the October 2020 Order and that any long-term reliance 
interests that might be said to exist in connection with the continued 
expulsion of UC under the October 2020 Order are outweighed by CDC's 
determination that there is no public health justification to expel UC 
at this time.\90\ To the extent that any state or local government did 
rely on the expulsion of UC for purposes of resource allocation despite 
the reasons cautioning against such reliance, CDC concludes that 
resource allocation concerns do not outweigh CDC's determination that 
expulsion of UC is not required to avert a serious danger to public 
health.
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    \90\ See Regents, 140 S. Ct. at 1913 (explaining that features 
evidencing the temporary and non-rights-conferring nature of a 
government program ``surely are pertinent in considering the 
strength of any reliance interests,'' and can be considered by the 
agency).
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    CDC has also considered whether there may be any short-term 
reliance on the continued expulsion of UC under the October 2020 
Order.\91\ Because CDC is unaware of any such reliance beyond the 
potential allocation of resources CDC already considered for local 
healthcare systems, CDC does not believe that any state or local 
government could have reasonably relied, even on a short-term basis, on 
the continued expulsion of UC. As noted above, any such reliance would 
not have been reasonable given the statutory requirement that 42 U.S.C. 
265 be invoked only if there is a ``serious danger of the introduction 
of [a communicable] disease into the United States, and that this 
danger is so increased by the introduction of persons or property from 
such country that a suspension of the right to introduce such persons 
and property is required in the interest of the public health,'' as 
well as the statutory mandate that Section 265 be utilized only ``for 
such period of time as [CDC] may deem necessary'' to avert such a 
danger. Any reliance also would have been particularly unwarranted 
because UC were subject to expulsion under 42 U.S.C. 265 for only a 
very limited time--from March 2020 to November 2020, and then briefly 
from January 29, 2021 to shortly before the February 11, 2021 notice. 
As such, the exclusion of UC from 42 U.S.C. 265 expulsions has been the 
status quo generally since November 2020 and certainly since at least 
February 2021. Thus, since the start of this public health emergency, 
the period of time during which UC have been excepted from expulsion 
under Section 265 is longer than the period of time during which they 
were subject to such expulsion. Even if an entity had reasonably relied 
on the inclusion of UC in an order under 42 U.S.C. 265 prior to 
February 2021, it should have adjusted its position by now. Therefore, 
CDC does not believe that any potential short-term reliance interests 
can reasonably outweigh CDC's public health determination that there is 
no public health justification for expelling UC under 42 U.S.C. 265 at 
this time.
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    \91\ See Regents, 140 S. Ct. at 1913 (rejecting the government's 
argument that the fact that the DACA program provided benefits only 
in two-year increments and was said not to confer any substantive 
rights ``automatically preclude[d] reliance interests,'' but noting 
that such disclaimers ``are surely pertinent in considering the 
strength of any reliance interests'').
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    Finally, Orders under 42 U.S.C. 265; 268 and 42 CFR 71.40 are not, 
and do not purport to be, policy decisions about controlling 
immigration; rather, as explained, CDC's exercise of its authority 
under Section 265 depends on the existence of a public health 
emergency. Thus, to the extent that border communities were relying on 
an order under 42 U.S.C. 265 as a means of controlling immigration, 
such reliance would not be reasonable or legitimate. Even if such 
reliance were reasonable or legitimate, that reliance would not 
outweigh CDC's public health assessment.
    In conclusion, any such reliance interests, whether short- or long-
term, do not outweigh CDC's determination that expulsion of UC is not 
necessary to avert a serious danger to public health. Because 
disruption of ordinary processing of UC is a weighty action, CDC does 
not believe it is appropriate to resume expulsion when CDC has 
concluded that such action is not warranted under the terms of 42 
U.S.C. 265.

C. Timing Considerations

    As noted in the August Order, CDC reassesses ``[t]he circumstances 
necessitating the Order . . . at least every 60 days.'' \92\ 
Accordingly, CDC has been in the process of evaluating the status of 
the pandemic and the evolving public health conditions since the 
conclusion of its previous review on January 29, 2022, to determine 
whether the Order remains necessary in whole or part to protect the 
public health. The current 60-day review process is scheduled to end on 
March 30, 2022, and CDC will conclude its reassessment of whether the 
Order remains necessary in whole or part to protect the public health 
with respect to SA and FMU by that date.
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    \92\ Supra note 1.
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    CDC had previously excepted UC in its July Exception, as reiterated 
and incorporated in its August Order.\93\ On March 4, 2022, the 
District Court for the Northern District of Texas issued a preliminary 
injunction ``enjoining and restraining'' CDC from enforcing the July 
Exception and August Order to the extent that they ``except 
unaccompanied alien children from the Title 42 procedures based solely 
on their status as unaccompanied alien children'' because, the court 
found, CDC had not

[[Page 15252]]

adequately explained its decision to treat UC differently than other 
noncitizens subject to the October Order.\94\ The court stayed its 
preliminary injunction for seven days.\95\
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    \93\ See 86 FR 38,717 (July 22, 2021); 86 FR at 42,837-38; see 
also 86 FR 9942 (Feb. 17, 2021).
    \94\ Texas v. Biden, No. 4:21-cv-579 (N.D. Tex. Mar. 4. 2022).
    \95\ Id.
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    Because CDC has determined, after considering current public health 
conditions and recent developments, that expulsion of UC is not 
warranted to protect the public health, and in recognition of the 
unique vulnerabilities of UC, CDC is immediately terminating the CDC 
Orders to the extent they apply to UC. Because of their 
vulnerabilities, UC are generally treated differently than other 
individuals apprehended and processed at the border under the 
immigration laws. When Section 265 does not apply, UC generally are 
transferred to the care and custody of HHS's ORR pursuant to the 
TVPRA.\96\ ORR is able to care for UC while implementing appropriate 
COVID-19 mitigation measures, given ORR's robust network of care 
facilities that provide testing and medical care, and DHS has already 
been excepting UC in accordance with CDC's August Order. Because CDC 
has in its expert judgment determined again that, based on current 
circumstances, the expulsion of UC under Section 265 is not necessary 
to protect the public health, there is no justification for subjecting 
UC to the potentially significant harms they could suffer if the CDC 
Orders were to be applied to them.\97\ For these reasons, CDC is 
terminating the CDC Orders to the extent they apply to UC.
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    \96\ See D.B. v. Cardall, 826 F.3d 721, 738 (4th Cir. 2016) 
(``The intricate web of statutory provisions relating to [UC] 
reflects Congress's unmistakable desire to protect that vulnerable 
group.'').
    \97\ See Huisha-Huisha v. Mayorkas,--F.4th--, 2022 WL 628061, 
*12 (D.C. Cir. Mar. 4, 2022) (noting that some migrants who are 
expelled could be subject to persecution and victimization).
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D. Basis for Termination With Respect to UC Under Sections 362 and 365 
of the PHS Act and 42 CFR 71.40

    CDC is hereby immediately terminating the August Order \98\ and all 
prior orders issued pursuant to sections 362 and 365 of the PHS Act (42 
U.S.C. 265, 268) and the implementing regulation at 42 CFR 71.40 to the 
extent they apply to UC.\99\
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    \98\ See supra notes 1 and 4.
    \99\ See supra note 7.
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    CDC is committed to using the least restrictive means necessary and 
avoiding the imposition of unnecessary burdens in exercising its 
communicable disease authorities. This aligns with the underlying legal 
authority in 42 U.S.C. 265, which makes clear that this authority 
extends only for such period of time deemed necessary to avert the 
serious danger of the introduction of a quarantinable communicable 
disease into the United States.\100\ Such an order must also be 
predicated, in part, upon a determination that the danger of such 
introduction is so increased that a suspension of the right to 
introduce such persons into the United States is required in the 
interest of public health.\101\
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    \100\ 42 U.S.C. 265; 42 CFR 71.40.
    \101\ 42 CFR 71.40.
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    CDC has considered these and other relevant factors in the 
foregoing reassessment with respect to UC, including the overall shift 
in the U.S. Government response to the pandemic, and in the context of 
reviewing the August Order with respect to UC, has determined that less 
restrictive means are available to avert the public health risks 
associated with the introduction, transmission, and spread of COVID-19 
into the United States. Although COVID-19 continues to spread within 
the United States, the numerous tools for disease prevention, 
mitigation, and treatment which have been implemented over the past two 
years (including those specific to UC in the custody of the federal 
government) are sufficient at this point in time to protect public 
health, such that an order suspending the right to introduce UC under 
42 U.S.C. 265 is no longer required in the interest of public health. 
CDC is not addressing application of the August Order to FMU and SA 
through this termination.

IV. Issuance and Implementation of Termination

A. Termination as to UC

    Based on the foregoing public health reassessment, I hereby 
Terminate immediately with respect to UC the August Order and all 
previous orders issued pursuant to Sections 362 and 365 of the PHS Act 
(42 U.S.C. 265, 268) and their implementing regulation at 42 CFR 
71.40.\102\
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    \102\ Control of Communicable Diseases; Foreign Quarantine: 
Suspension of the Right to Introduce and Prohibition of Introduction 
of Persons into United States from Designated Foreign Countries or 
Places for Public Health Purposes, 85 FR 56424 (Sept. 11, 2020); 42 
CFR 71.40.
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    Immediate termination of the August Order with respect to UC is 
based on the current status of the COVID-19 pandemic and the public 
health mitigation measures available for UC and the public. In making 
this determination, I have considered myriad facts, including 
epidemiological information regarding COVID-19, the emergence of SARS-
CoV-2 variants, the morbidity and mortality associated with the disease 
for individuals in certain risk categories, COVID-19 Community Levels, 
national levels of transmission and immunity, the availability and 
efficacy of vaccination and treatments, as well as care available to UC 
and public health concerns with congregate settings at border 
facilities. While holding UC in congregate settings with limited 
options for COVID-19 mitigation is accompanied by some inherent risk, 
the overall public health landscape in the United States has changed 
such that the justification for the August Order is no longer sustained 
with respect to UC particularly in light of the mitigation measures as 
applied to UC.
    As noted previously, CDC is not addressing application of the 
August Order to FMU and SA through this termination. DHS will continue 
to exercise its discretion to issue exceptions pursuant to a DHS-
approved process or on a case-by-case basis, based on the totality of 
the circumstances as set forth in the August Order to FMU and SA, as 
appropriate.

B. APA Review

    This Termination shall be immediately effective with respect to UC. 
I consulted with DHS and other federal departments as needed before I 
issued this Order and requested that DHS aid in the implementation of 
this Termination and continued aspects of the Order because CDC does 
not have the capability, resources, or personnel needed to do so.\103\
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    \103\ 42 U.S.C. 268; 42 CFR 71.40(d).
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    This Termination, like the preceding Orders issued under this 
authority, is not a rule subject to notice and comment under the APA. 
Even if it were, notice and comment and a delay in effective date are 
not required because there is good cause to dispense with prior public 
notice and the opportunity to comment on this Termination; it would be 
impracticable and contrary to public health practices, the public 
interest, and immigration laws that apply in the absence of an order 
under 42 U.S.C. 265 to delay the issuing and effective date of this 
Termination.\104\ In addition, this Order concerns ongoing discussions 
with Canada, Mexico, and other countries regarding how best to control 
COVID-19 transmission over shared borders and therefore directly 
``involve[s] . . . a . . . foreign affairs function of the United 
States.'' \105\ Thus, for both of the foregoing reasons, notice and 
comment

[[Page 15253]]

and a delay in effective date are not required.
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    \104\ 5 U.S.C. 553(a)(1).
    \105\ 5 U.S.C. 553(a)(1).
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    With this Termination, I hereby determine that the danger of 
further introduction, transmission, or spread of COVID-19 into the 
United States from UC, as defined in the August Order, has ceased to be 
a serious danger to the public health and therefore the continuation of 
the August Order, and all previous orders issued under the same 
authority, with respect to UC is no longer necessary to protect public 
health. Nothing in this Termination will prevent me from issuing a new 
Order under 42 U.S.C. 265, 268 and 42 CFR 71.40 based on new findings, 
as dictated by public health needs.

Sherri Berger,
Chief of Staff, Centers for Disease Control and Prevention.
[FR Doc. 2022-05687 Filed 3-15-22; 11:15 am]
BILLING CODE 4163-18-P