[Federal Register Volume 87, Number 15 (Monday, January 24, 2022)]
[Rules and Regulations]
[Pages 3429-3433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01402]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection

19 CFR Chapter I

[Docket No. DHS-2022-0002]
RIN 1601-ZA20


Notification of Temporary Travel Restrictions Applicable to Land 
Ports of Entry and Ferries Service Between the United States and Canada

AGENCY: Office of the Secretary, U.S. Department of Homeland Security; 
U.S. Customs and Border Protection, U.S. Department of Homeland 
Security.

ACTION: Notification of temporary travel restrictions.

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SUMMARY: This Notification announces the decision of the Secretary of 
Homeland Security (``Secretary''), after consulting with interagency 
partners, to temporarily restrict travel by certain noncitizens into 
the United States at land ports of entry, including ferry terminals 
(``land POEs'') along the United States-Canada border. These 
restrictions only apply to noncitizens who are neither U.S. nationals 
nor lawful permanent residents (``noncitizen non-LPRs''). Under the 
temporary restrictions, DHS will allow processing for entry into the 
United States of only those noncitizen non-LPRs who are fully 
vaccinated against COVID-19 and can provide proof of being fully 
vaccinated against COVID-19 upon request. The restrictions provide for 
limited exceptions, largely consistent with the limited exceptions 
currently available with respect to COVID-19 vaccination in the 
international air travel context. Unlike past actions of this type, 
this Notification does not contain an exception for essential travel.

DATES: These restrictions go into effect at 12 a.m. Eastern Standard 
Time (EST) on January 22, 2022, and will remain in effect until 11:59 
p.m. Eastern Daylight Time (EDT) on April 21, 2022, unless amended or 
rescinded prior to that time.

FOR FURTHER INFORMATION CONTACT: Petra Horne, Office of Field 
Operations, U.S. Customs and Border Protection (CBP), 202-325-1517.

SUPPLEMENTARY INFORMATION:

Background

    On March 24, 2020, the Department of Homeland Security (``DHS'') 
published a Notification of its decision to temporarily limit the 
travel of certain noncitizen non-LPRs into the United States at land 
POEs along the United States-Canada border to ``essential travel,'' as 
further defined in that document.\1\ The March 24, 2020 Notification 
described the developing circumstances regarding the COVID-19 pandemic 
and stated that, given the outbreak, continued transmission, and spread 
of the virus associated with COVID-19 within the United States and 
globally, DHS had determined that the risk of continued transmission 
and spread of the virus associated with COVID-19 between the United 
States and Canada posed a ``specific threat to human life or national 
interests.'' Under the March 24, 2020 Notification, DHS continued to 
allow certain categories of travel, described as ``essential travel.'' 
Essential travel included travel to attend educational institutions, 
travel to work in the United States, travel for emergency response and 
public health purposes, and travel for lawful cross-border trade. 
Essential travel also included travel by U.S. citizens and lawful 
permanent residents returning to the United States.
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    \1\ 85 FR 16548 (Mar. 24, 2020). That same day, DHS also 
published a Notification of its decision to temporarily limit the 
travel of certain noncitizen non-LPR persons into the United States 
at land POEs along the United States-Mexico border to ``essential 
travel,'' as further defined in that document. 85 FR 16547 (Mar. 24, 
2020).
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    From March 2020 through October 2021, in consultation with 
interagency partners, DHS reevaluated and ultimately extended the 
restrictions on non-essential travel each month. The most recent action 
of this type, published on October 21, 2021, continued the restrictions 
until 11:59 p.m. EST on January 21, 2022.\2\ In that document, DHS 
acknowledged that notwithstanding the continuing threat to human life 
or national interests posed by COVID-19--as well as recent increases in 
case levels,

[[Page 3430]]

hospitalizations, and deaths due to the Delta variant--COVID-19 
vaccines are effective against Delta and other known COVID-19 variants. 
These vaccines protect people from becoming infected with and severely 
ill from COVID-19 and significantly reduce the likelihood of 
hospitalization and death. DHS also acknowledged the White House COVID-
19 Response Coordinator's September 2021 announcement regarding the 
United States' plans to revise standards and procedures for incoming 
international air travel to enable the air travel of travelers fully 
vaccinated against COVID-19 beginning in early November 2021.\3\ DHS 
further stated that the Secretary intended to do the same with respect 
to certain travelers seeking to enter the United States from Mexico and 
Canada at land POEs to align the treatment of different types of travel 
and allow those who are fully vaccinated against COVID-19 to travel to 
the United States for non-essential reasons.\4\
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    \2\ See 86 FR 58218 (Oct. 21, 2021) (extending restrictions for 
the United States-Canada border); 86 FR 58216 (Oct. 21, 2021) 
(extending restrictions for the United States-Mexico border).
    \3\ See Press Briefing by Press Secretary Jen Psaki (Sept. 20, 
2021), https://www.whitehouse.gov/briefing-room/press-briefings/2021/09/20/press-briefing-by-press-secretary-jen-psaki-september-20-2021/ (``As was announced in a call earlier today . . . [w]e--
starting in . . . early November [will] be putting in place strict 
protocols to prevent the spread of COVID-19 from passengers flying 
internationally into the United States by requiring that adult 
foreign nationals traveling to the United States be fully 
vaccinated.'').
    \4\ See 86 FR 58218; 86 FR 58216.
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    On October 29, 2021, following additional announcements regarding 
changes to the international air travel policy by the President of the 
United States and the Centers for Disease Control and Prevention 
(``CDC''),\5\ DHS announced that beginning November 8, 2021, non-
essential travel of noncitizen non-LPRs would be permitted through land 
POEs, provided that the traveler is fully vaccinated against COVID-19 
and can provide proof of full COVID-19 vaccination status.\6\ DHS also 
announced that beginning in January 2022, inbound noncitizen non-LPRs 
traveling to the United States via land POEs--whether for essential or 
non-essential reasons--would be required to be fully vaccinated against 
COVID-19 and provide proof of full COVID-19 vaccination status.\7\
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    \5\ Changes to requirements for travel by air were implemented 
by, inter alia, Presidential Proclamation 10294 of October 25, 2021, 
86 FR 59603 (Oct. 28, 2021) (Presidential Proclamation), and a 
related CDC order, 86 FR 61224 (Nov. 5, 2021) (CDC Order). See also 
CDC, Requirement for Proof of Negative COVID-19 Test or Recovery 
from COVID-19 for All Air Passengers Arriving in the United States, 
https://www.cdc.gov/quarantine/pdf/Global-Testing-Order-10-25-21-p.pdf (Oct. 25, 2021); Requirement for Airlines and Operators to 
Collect Contact Information for All Passengers Arriving into the 
United States, https://www.cdc.gov/quarantine/pdf/CDC-Global-Contact-Tracing-Order-10-25-2021-p.pdf (Oct. 25, 2021). CDC later 
amended its testing order following developments related to the 
Omicron variant. See CDC, Requirement for Proof of Negative COVID-19 
Test Result or Recovery from COVID-19 for All Airline Passengers 
Arriving into the United States, https://www.cdc.gov/quarantine/pdf/Amended-Global-Testing-Order_12-02-2021-p.pdf (Dec. 2, 2021).
    \6\ See, e.g., DHS, Fact Sheet: Guidance for Travelers to Enter 
the U.S. at Land Ports of Entry and Ferry Terminals, https://www.dhs.gov/news/2021/10/29/fact-sheet-guidance-travelers-enter-us-land-ports-entry-and-ferry-terminals (updated Nov. 23, 2021). See 
also 86 FR 72842 (Dec. 23, 2021) (describing the announcement with 
respect to Canada); 86 FR 72843 (Dec. 23, 2021) (describing the 
announcement with respect to Mexico).
    \7\ See DHS, DHS Releases Details for Fully Vaccinated, Non-
Citizen Travelers to Enter the U.S. at Land and Ferry Border 
Crossings, https://www.dhs.gov/news/2021/10/29/dhs-releases-details-fully-vaccinated-non-citizen-travelers-enter-us-land-and-ferry (Oct. 
29, 2021); DHS, Fact Sheet: Guidance for Travelers to Enter the U.S. 
at Land Ports of Entry and Ferry Terminals, https://www.dhs.gov/news/2021/10/29/fact-sheet-guidance-travelers-enter-us-land-ports-entry-and-ferry-terminals (updated Nov. 23, 2021); see also DHS, 
Frequently Asked Questions: Guidance for Travelers to Enter the 
U.S., https://www.dhs.gov/news/2021/10/29/frequently-asked-questions-guidance-travelers-enter-us (updated Nov. 23, 2021).
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    DHS has continued to monitor and respond to the COVID-19 pandemic. 
On December 14, 2021, at DHS's request, CDC provided a memorandum to 
DHS describing the current status of the COVID-19 public health 
emergency. The CDC memorandum warned of ``case counts and deaths due to 
COVID-19 continuing to increase around the globe and the emergence of 
new and concerning variants,'' and emphasized that ``[v]accination is 
the single most important measure for reducing risk for SARS-CoV-2 
transmission and avoiding severe illness, hospitalization, and death.'' 
\8\ Given these considerations, CDC recommended that proof of COVID-19 
vaccination requirements be expanded to cover both essential and non-
essential noncitizen non-LPR travelers.
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    \8\ See Memorandum from CDC to CBP re Public Health 
Recommendation for Proof of COVID-19 Vaccination at U.S. Land 
Borders (Dec. 14, 2021).
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    According to CDC, studies indicate that individuals vaccinated 
against COVID-19 are five times less likely to be infected with COVID-
19 and more than eight times less likely to require hospitalization 
than those who are unvaccinated. Further, unvaccinated people are 14 
times more likely to die from COVID-19 than those who are vaccinated. 
Such increases in hospitalization and death rates strain critical 
healthcare resources, which in some parts of the United States may be 
in short supply.\9\ As CDC wrote, ``proof of vaccination of travelers 
helps protect the health and safety of both the personnel at the border 
and other travelers, as well as U.S. destination communities. Border 
security and transportation security work is part of the nation's 
critical infrastructure and presents unique challenges for ensuring the 
health and safety of personnel and travelers.''
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    \9\ At the time of the memorandum, CDC noted that the Delta 
variant was still the predominant variant in the United States, but 
that ongoing research indicated that the Omicron variant may spread 
more easily than the original SARS-CoV-2 virus. CDC noted that 
further studies are underway to assess concerns about whether the 
Omicron variant may have increased transmissibility, confer 
resistance to therapeutics, or partially escape infection- or 
vaccine-induced immunity.
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    CDC's memorandum also acknowledged that because of operational 
considerations, requirements at land POEs may differ from those 
implemented for air travel. CDC recognized the operational challenges, 
as described by DHS, with imposing a testing requirement at land POEs, 
and noted key differences between land travel and air travel with 
respect to the volume of travel, predictability, and infrastructure 
involved.\10\ In the absence of required pre-entry COVID-19 testing, 
CDC described a proof of COVID-19 vaccination requirement as 
``essential as a matter of public health.'' \11\
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    \10\ CBP assesses that a testing option is not operationally 
feasible given the significant number of land border crossers that 
go back on forth on a daily, or near-daily basis, for work or 
school. A negative COVID-19 test requirement would mean that such 
individuals would have to get tested just about every day. This is 
not currently feasible, given the cost and supply constraints, 
particularly in smaller rural locations. Further, CBP reports 
additional operational challenges associated with verifying test 
results, given the wide variation in documentation.
    \11\ See Memorandum from CDC to CBP (Dec. 14, 2021).
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    In a January 14, 2022 update, also at the request of DHS, CDC 
confirmed its prior recommendation. Specifically, CDC noted the ``rapid 
increase'' of COVID-19 cases across the United States that have 
contributed to high levels of community transmission and increased 
rates of new hospitalizations and deaths. According to CDC, between 
January 5 and January 11, 2022, the seven-day average for new hospital 
admissions of patients with confirmed COVID-19 increased by 24 percent 
over the prior week, and the seven-day average for new COVID-19-related 
deaths rose to 2,991, an increase of 33.7 percent compared to the prior 
week. CDC emphasized that this increase has exacerbated the strain on 
the United States' healthcare system and again urged that 
``[v]accination of the broadest number of people best protects all 
individuals and preserves the United

[[Page 3431]]

States' critical infrastructure, including healthcare systems and 
essential workforce.'' CDC thus urged ``the most comprehensive 
requirements possible for proof of vaccination'' and specifically 
recommended against exceptions for specific worker categories as a 
public health matter.\12\
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    \12\ Memorandum from CDC to CBP re Public Health Recommendation 
for Proof of COVID-19 Vaccination at U.S. Land Borders--Addendum 
(Jan. 18, 2022).
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    DHS has conferred with interagency partners, taken into account all 
relevant factors, including economic considerations and CDC's public 
health input, and concludes that a broad COVID-19 vaccination 
requirement at land POEs is necessary and appropriate. In particular, 
DHS notes that, according to the information provided by CDC, those who 
are not fully vaccinated against COVID-19 have proven to be more likely 
to be infected by COVID-19, to spread COVID-19 to others, to suffer 
severe symptoms, and to require the use of scarce hospital resources. 
DHS acknowledges that in past actions of this type, it has continued to 
allow essential travel by certain noncitizen non-LPRs who are not fully 
vaccinated against COVID-19. The assessment has, however, changed in 
light of the following two factors: (1) The rapid increase of COVID-19 
cases; and (2) the increasing availability of COVID-19 vaccines.
    With respect to the increasing availability of COVID-19 vaccines, 
at this point, COVID-19 vaccines--which according to CDC are ``the 
single most important measure'' for responding to COVID-19 \13\--are 
widely available and have been increasingly available for months. In 
Canada, 77.1 percent of the entire population is now fully vaccinated 
against COVID-19, while 87.8 percent of individuals 12 years and older 
are fully vaccinated against COVID-19.\14\ In Mexico, 55.9 percent of 
the population is fully vaccinated against COVID-19,\15\ while as of 
October 2021, 72 percent of those living in border regions were fully 
vaccinated against COVID-19.\16\ In October 2021, DHS announced its 
intention to expand the temporary travel restrictions applicable to 
land POEs by applying the COVID-19 vaccination requirement to those 
traveling for essential reasons, thus recognizing the importance of 
fair notice and allowing ample time for noncitizen non-LPR essential 
travelers to get fully vaccinated against COVID-19. For these reasons, 
DHS believes that it is now necessary and appropriate to align COVID-19 
vaccine restrictions at land POEs to current U.S. government policy 
governing incoming international air travel.\17\
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    \13\ See Memorandum from CDC to CBP (Dec. 14, 2021).
    \14\ Canadian statistics may be found at: https://health-infobase.canada.ca/covid-19/vaccination-coverage/ (Jan. 17, 2022).
    \15\ Mexican statistics may be found at: https://ourworldindata.org/covid-vaccinations?country=MEX (Jan. 17, 2022).
    \16\ Government of Mexico briefing for the NSC-led Mexico-U.S. 
International Travel Working Group, October 2021.
    \17\ For a discussion of the current U.S. government policy 
regarding international air travel, see, supra, n. 45.
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    Moreover, COVID-19 cases continue to increase rapidly across the 
United States, as described below. This surge is currently driven by 
the Omicron variant, which CDC's Nowcast model projects may account for 
approximately 98.3 percent of cases.\18\ On January 5, 2022, 705,264 
new COVID-19 cases were reported, more than double the peak in January 
2021. Communities across the United States are now experiencing high 
levels of community transmission, and hospitalizations and deaths are 
also on the rise.\19\ This surge underscores the need for the policy 
that DHS previously announced, and is an important reason why DHS, in 
consultation with interagency partners, is declining to implement broad 
exceptions for certain categories of travelers.
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    \18\ Variant Proportions, Centers for Disease Control and 
Prevention, https://covid.cdc.gov/covid-data-tracker/#variant-proportions (week ending Jan. 8, 2022).
    \19\ COVID Data Tracker Weekly Review: Interpretive Summary for 
the Centers for Disease Control and Prevention, COVID Data Tracker 
Weekly Review: Interpretive Summary for January 7, 2022, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html 
(Jan. 7, 2022).
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    In reaching this conclusion, DHS weighed the concerns of industry 
and, in particular, firms employing or relying on long-haul truck 
drivers and persons engaged in freight rail operations.\20\ DHS 
carefully considered alternative approaches, including exceptions for 
these categories of workers. As a public health matter, CDC strongly 
discouraged additional exceptions, particularly in light of the current 
increase in COVID-19 cases and related resulting strains on the 
healthcare system. Even if such workers do not engage in extended 
interaction with others, they still engage in activities that involve 
contact with others, thereby increasing the risk of contributing to 
community spread of COVID-19. Such workers also may enter the United 
States after contracting COVID-19, become seriously ill after arrival, 
and require scarce healthcare resources as a result. Given CDC's 
recommendation, and after extensive consultation with interagency 
partners, DHS has determined that such activities do not warrant an 
exception from these restrictions because these persons still present a 
public health risk. A COVID-19 vaccination requirement at land POEs 
helps protect the health and safety of the personnel at the border, 
other travelers, and the U.S. communities where these persons may be 
traveling and spending time among the public. A COVID-19 vaccination 
requirement for these individuals also reduces burdens on local 
healthcare resources in U.S. communities. This approach aligns the U.S. 
COVID-19 policies applicable to land POEs with air travel restrictions 
that require noncitizen non-LPRs traveling by air to the United States 
for both essential and non-essential reasons to be fully vaccinated 
against COVID-19 and provide related proof of vaccination, with very 
few exceptions. This approach also aligns with new travel restrictions 
imposed by Canada on January 15, 2022, which similarly impose a COVID-
19 vaccination requirement on cross-border travel, with no exception 
for truck drivers or freight rail operators.\21\
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    \20\ DHS acknowledges that past actions of this type exempted 
freight rail, but DHS notes that the considerations applicable to 
other forms of travel previously designated as essential apply 
equally in the freight rail context.
    \21\ Public Health Agency of Canada website Requirements for 
Truckers entering Canada in effect as of January 15, 2022, https://www.Canada.ca/en/public-health/news/2022/01/requirements-for-truckers-entering-canada-in-effect-as-of-january-15-2022.html; 
Public Health Agency of Canada website: Minimizing the Risk of 
Exposure to COVID-19 in Canada Order (Prohibition of Entry into 
Canada from the United States), Section 10 of order is the provision 
that went into place on 15 January 2022, https://orders-in-council.canada.ca/attachment.php?attach=41322&lang=en.
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    DHS also acknowledges concerns among some industry stakeholders 
that this policy, however necessary to protect the American public, 
could disrupt cross-border economic activity. In consultation with 
interagency partners, DHS has carefully considered these concerns. DHS 
has conferred with interagency partners and determined that these 
concerns are outweighed by the competing public health concerns and the 
wide availability of COVID-19 vaccines, coupled with the growing body 
of evidence that employment-related COVID-19 vaccine mandates result in 
high levels of COVID-19 vaccine acceptance among employees.\22\

[[Page 3432]]

A recent White House analysis highlights the ways in which COVID-19 
vaccine requirements that cover whole industries or sectors can be 
particularly effective in persuading employees to become fully 
vaccinated against COVID-19.\23\ The incentive effects of industry-wide 
requirements, as well as the introduction of a range of other policies 
intended to incentivize vaccination against COVID-19, reduce the 
likelihood of a significant disruption in cross-border economic 
activity, while protecting public health.\24\
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    \22\ See, e.g., David Koenig, Associated Press, American, 
Alaska, JetBlue join growing list of airlines requiring employees to 
be vaccinated against COVID-19, https://www.usatoday.com/story/travel/airline-news/2021/10/02/american-joins-list-airlines-requiring-employee-vaccinations/5968626001/ (Oct. 2, 2021) (``United 
Airlines took an early and tough stance to require vaccination. 
United said Thursday that 320 of its 67,000 U.S. employees faced 
termination for not getting vaccinated or seeking a medical or 
religious exemption by a deadline earlier in the week.''); Novant 
Health, Novant Health update on mandatory COVID-19 vaccination 
program for employees, https://www.novanthealth.org/home/about-us/newsroom/press-releases/newsid33987/2576/novant-health-update-on-mandatory-covid-19-vaccination-program-for-employees.aspx (Sept. 21, 
2021) (``Today, 98.6% of more than 35,000 team members are compliant 
with Novant Health's mandatory COVID-19 vaccination program.''); 
Houston Methodist, Houston Methodist Requires COVID-19 Vaccine for 
Credentialed Doctors, https://www.houstonmethodist.org/leading-medicine-blog/articles/2021/jun/houston-methodist-requires-covid-19-vaccine-for-credentialed-doctors/ (June 8, 2021) (``As of June 1, 
more than 99% of the system's 26,000 employees and physicians have 
received the vaccine'' following issuance of a vaccine mandate in 
April 2021); Alison Kosik, CNN Business, 96% of Tyson's Active 
Workers are Vaccinated, CNN (Oct. 26, 2021), https://www.cnn.com/2021/10/26/business/tyson-covid-vaccine/index.html (``Tyson's 
President and CEO Donnie King said in a blog post `we couldn't be 
happier to say that, as of today, over 96% of our active team 
members are vaccinated--or nearly 60,000 more than when we made the 
announcement on August 3.' ''). See also generally Dave Muoio, 
Fierce Healthcare, How many employees have hospitals lost to vaccine 
mandates? Here are the numbers so far, https://www.fiercehealthcare.com/hospitals/how-many-employees-have-hospitals-lost-to-vaccine-mandates-numbers-so-far (last updated Jan. 
5, 2022) (collecting examples).
    \23\ See White House Report: Vaccination Requirements Are 
Helping Vaccinate More People, Protect Americans from COVID-19, and 
Strengthen the Economy (Oct. 7, 2021).
    \24\ On October 30, 2021, the Government of Canada imposed a 
separate domestic mandate on federally regulated railways, and their 
rail crew and track employees, along with air and marine operators. 
Each organization is required to have a process for employee 
attestation of their vaccination status; provide a description of 
consequences for employees who do not comply or who falsify 
information; and meet standards consistent with the approach taken 
by the Government of Canada for the Core Public Administration. See 
Transport Canada, Mandatory COVID-19 vaccination requirements for 
federally regulated transportation employees and travellers, https://www.canada.ca/en/transport-canada/news/2021/10/mandatory-covid-19-vaccination-requirements-for-federally-regulated-transportation-employees-and-travellers.html (updated Oct. 30, 2021).
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    DHS acknowledges that some persons engaged in essential travel, in 
particular long-haul truck drivers and persons engaged in freight rail 
operations, do not engage in work-related activities that involve 
extended exposure to others in congregate settings. However, there are 
also important differences between (1) commercial truck, rail, and 
ferry operators; and (2) air crews and sea crew members traveling 
pursuant to a C-1 or D nonimmigrant visa. In the international air 
travel context, under the Presidential Proclamation 10294 of October 
25, 2021 \25\ (``the Presidential Proclamation''), as implemented by 
CDC's Amended Order Implementing Presidential Proclamation on Advancing 
the Safe Resumption of Global Travel During the COVID-19 Pandemic \26\ 
and Technical Instructions \27\ (``the CDC Order''), commercial air 
crews are excepted from COVID-19 vaccination requirements only if they 
follow industry standard protocols for the prevention of COVID-19 as 
set forth in relevant Safety Alerts for Operators (``SAFO'') issued by 
the Federal Aviation Administration.\28\ SAFO 20009 includes a range of 
measures for air crew to protect their health and the health of others. 
Sea crew members traveling pursuant to a C-1 or D nonimmigrant visa are 
similarly excepted from international air travel COVID-19 vaccine 
requirements only if they adhere to all industry standard protocols for 
the prevention of COVID-19, as set forth in relevant CDC guidance for 
crew member health.\29\ Importantly, unvaccinated noncitizen mariners 
must take a predeparture COVID-19 test within one day of travel and 
show a negative result prior to boarding a plane, attest that they will 
self-quarantine upon arrival in the United States, and have access to 
shipboard quarantine options as needed.\30\ Currently, commercial truck 
drivers and freight rail and ferry operators are not subject to similar 
industry-wide requirements. They are therefore not amenable to parallel 
treatment at this time.
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    \25\ 86 FR 59603 (Oct. 28, 2021).
    \26\ 86 FR 61224 (Nov. 5, 2021).
    \27\ CDC, Technical Instructions for Implementing Presidential 
Proclamation Advancing the Safe Resumption of Global Travel During 
the COVID-19 Pandemic and CDC's Order, https://www.cdc.gov/quarantine/order-safe-travel/technical-instructions.html (last 
reviewed Nov. 30, 2021).
    \28\ 86 FR 61224 (Nov. 5, 2021) (citing FAA, SAFO 20009, COVID-
19: Updated Interim Occupational Health and Safety Guidance for Air 
Carriers and Crews, https://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/safo/all_safos/media/2020/SAFO20009.pdf (last updated May 25, 2021)).
    \29\ Information on maritime COVID-19 guidance may be found at: 
https://www.cdc.gov/quarantine/index.html.
    \30\ See CDC, Requirement for Proof of COVID-19 Vaccination for 
Air Passengers, https://www.cdc.gov/coronavirus/2019-ncov/travelers/proof-of-vaccination.html (last updated Dec. 21, 2021); see also, 
e.g., CDC, Technical Instructions for CDC's COVID-19 Program for 
Cruise Ships Operating in U.S. Waters, https://www.cdc.gov/quarantine/cruise/management/technical-instructions-for-cruise-ships.html (updated Jan. 14, 2022) and Interim Guidance for Ships on 
Managing Suspected or Confirmed Cases of Coronavirus Disease 2019 
(COVID-19), https://www.cdc.gov/quarantine/maritime/recommendations-for-ships.html (Updated Nov. 5, 2021). As noted above, DHS 
considered but rejected a testing requirement due to operational 
considerations. DHS notes that sea crew members are not excepted 
under this Notification.
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    DHS, in consultation with its interagency partners, also has 
considered the operational effect of these requirements. While these 
changes potentially bring risk of increased wait times at land POEs in 
the passenger and commercial environments and delays in cargo shipments 
if vaccinated truck drivers and persons engaged in freight rail 
operations are unavailable, DHS projects minimal, short-term 
operational impacts as travelers become familiar with the new 
requirements. The enforcement of these requirements will mirror the 
enforcement practices implemented for non-essential travel restrictions 
on November 8, 2021 which yielded minimal operational disruptions. This 
assessment is based in part on observations from the implementation of 
the November 8, 2021 Title 19 restrictions and on the successful 
implementation of similar requirements by the Canadian government on 
January 15, 2022.

Notice of Action

    Following consultation with CDC and other interagency partners, and 
after having considered and weighed the relevant factors, I have 
determined that the risk of continued transmission and spread of the 
virus associated with COVID-19 between the United States and Canada, 
including the associated burden on already stressed healthcare 
resources, poses an ongoing ``specific threat to human life or national 
interests.'' Accordingly, and consistent with the authority granted in 
19 U.S.C. 1318(b)(1)(C) and (b)(2),\31\ I have

[[Page 3433]]

determined, in consultation with interagency partners, that land POEs 
along the United States-Canada border will continue to suspend normal 
operations and will allow processing for entry into the United States 
of only those noncitizen non-LPRs who are ``fully vaccinated against 
COVID-19'' and can provide ``proof of being fully vaccinated against 
COVID-19'' upon request, as those terms are defined under the 
Presidential Proclamation and CDC Order. This action does not apply to 
U.S. citizens, U.S. nationals, lawful permanent residents of the United 
States, or American Indians who have a right by statute to pass the 
borders of, or enter into, the United States. In addition, I hereby 
authorize exceptions to these restrictions for the following categories 
of noncitizen non-LPRs: \32\
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    \31\ 19 U.S.C. 1318(b)(1)(C) provides that ``[n]otwithstanding 
any other provision of law, the Secretary of the Treasury, when 
necessary to respond to a national emergency declared under the 
National Emergencies Act (50 U.S.C. 1601 et seq.) or to a specific 
threat to human life or national interests,'' is authorized to 
``[t]ake any . . . action that may be necessary to respond directly 
to the national emergency or specific threat.'' On March 1, 2003, 
certain functions of the Secretary of the Treasury were transferred 
to the Secretary of Homeland Security. See 6 U.S.C. 202(2), 203(1). 
Under 6 U.S.C. 212(a)(1), authorities ``related to Customs revenue 
functions'' were reserved to the Secretary of the Treasury. To the 
extent that any authority under section 1318(b)(1) was reserved to 
the Secretary of the Treasury, it has been delegated to the 
Secretary of Homeland Security. See Treas. Dep't Order No. 100-16 
(May 15, 2003), 68 FR 28322 (May 23, 2003). Additionally, 19 U.S.C. 
1318(b)(2) provides that ``[n]otwithstanding any other provision of 
law, the Commissioner of U.S. Customs and Border Protection, when 
necessary to respond to a specific threat to human life or national 
interests, is authorized to close temporarily any Customs office or 
port of entry or take any other lesser action that may be necessary 
to respond to the specific threat.'' Congress has vested in the 
Secretary of Homeland Security the ``functions of all officers, 
employees, and organizational units of the Department,'' including 
the Commissioner of CBP. 6 U.S.C. 112(a)(3).
    \32\ The exceptions to this temporary restriction are generally 
aligned with those outlined in the Presidential Proclamation and 
further described in the CDC Order, with modifications to account 
for the unique nature of land border operations where advance 
passenger information is largely not available.
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    <bullet> Certain categories of persons on diplomatic or official 
foreign government travel as specified in the CDC Order;
    <bullet> persons under 18 years of age;
    <bullet> certain participants in certain COVID-19 vaccine trials as 
specified in the CDC Order;
    <bullet> persons with medical contraindications to receiving a 
COVID-19 vaccine as specified in the CDC Order;
    <bullet> persons issued a humanitarian or emergency exception by 
the Secretary of Homeland Security;
    <bullet> persons with valid nonimmigrant visas (excluding B-1 
[business] or B-2 [tourism] visas) who are citizens of a country with 
limited COVID-19 vaccine availability, as specified in the CDC Order;
    <bullet> members of the U.S. Armed Forces or their spouses or 
children (under 18 years of age) as specified in the CDC Order; and,
    <bullet> persons whose entry would be in the U.S. national 
interest, as determined by the Secretary of Homeland Security.
    In administering such exceptions, DHS will not require the Covered 
Individual Attestation currently in use by CDC for noncitizens who are 
nonimmigrants seeking to enter the United States by air travel, or 
similar form, but DHS may, in its discretion, require any person 
invoking an exception to provide proof of eligibility consistent with 
documentation requirements in CDC's Technical Instructions.\33\
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    \33\ CDC, Technical Instructions for Implementing Presidential 
Proclamation Advancing the Safe Resumption of Global Travel During 
the COVID-19 Pandemic and CDC's Order, https://www.cdc.gov/quarantine/order-safe-travel/technical-instructions.html (last 
reviewed Nov. 30, 2021).
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    This Notification does not apply to air or sea travel between the 
United States and Canada. This Notification does apply to passenger/
freight rail, passenger ferry travel, and pleasure boat travel between 
the United States and Canada. These restrictions are temporary in 
nature and shall remain in effect until the date indicated on this 
Notification, unless modified or rescinded at any point prior to that 
date, including to conform these restrictions to any intervening 
changes in the Presidential Proclamation and implementing CDC orders. 
In conjunction with interagency partners, I will closely monitor the 
effect of the requirements discussed herein, especially as they relate 
to any potential impacts on the supply chain and will, as needed and 
warranted, exercise my authority in support of the U.S. national 
interest.
    I intend for this Notification and the restrictions discussed 
herein to be given effect to the fullest extent allowed by law; in the 
event that a court of competent jurisdiction stays, enjoins, or sets 
aside any aspect of this action, on its face or with respect to any 
person, entity, or class thereof, any portion of this action not 
determined by the court to be invalid or unenforceable should otherwise 
remain in effect for the duration stated above.
    This action is not a rule subject to notice and comment under the 
Administrative Procedure Act (APA). It is exempt from notice and 
comment requirements because it 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.'' Even if this action 
were subject to notice and comment, there is good cause to dispense 
with prior public notice and the opportunity to comment. Given the 
public health emergency caused by COVID-19, including the rapidly 
evolving circumstances associated with elevated rates of infection due 
to the Omicron variant, it would be impracticable and contrary to the 
public health, and the public interest, to delay the issuance and 
effective date of this action.
    The CBP Commissioner is hereby directed to prepare and distribute 
appropriate guidance to CBP personnel on the implementation of the 
temporary measures set forth in this Notification. Further, the CBP 
Commissioner may, on an individualized basis and for humanitarian or 
emergency reasons or for other purposes in the national interest, 
permit the processing of travelers to the United States who would 
otherwise be subject to the restrictions announced in this 
Notification.

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2022-01402 Filed 1-21-22; 8:45 am]
BILLING CODE 9112-FP-P