Federal Register / Vol. 87, No. 66 / Wednesday, April 6, 2022 / Notices 19941 

DATES: Nominations for membership on 

the HICPAC should be received no later 

than September 17, 2022. Packages 

received after this time will not be 

considered for the current membership 

cycle. 

ADDRESSES: All nominations should be 

mailed to HICPAC, Division of 

Healthcare Quality Promotion, NCEZID, 

CDC, 1600 Clifton Road NE, Mailstop 

H16–3, Atlanta, Georgia 30329–4027, 

emailed (recommended) to hicpac@

cdc.gov, or faxed to (404) 639–4043. 

FOR FURTHER INFORMATION CONTACT: 

Sydnee Byrd, MPA, HICPAC, Division 

of Healthcare Quality Promotion, 

NCEZID, CDC, 1600 Clifton Road NE, 

Mailstop H16–3, Atlanta, Georgia 

30329–4027; Telephone: (404) 718– 

8039, Email: hicpac@cdc.gov. 

SUPPLEMENTARY INFORMATION: The U.S. 

Department of Health and Human 

Services policy stipulates that 

committee membership be balanced in 

terms of points of view represented, and 

the committee’s function. Appointments 

shall be made without discrimination 

on the basis of age, race, ethnicity, 

gender, sexual orientation, gender 

identity, HIV status, disability, and 

cultural, religious, or socioeconomic 

status. Nominees must be U.S. citizens 

and cannot be full-time employees of 

the U.S. Government. Current 

participation on federal workgroups or 

prior experience serving on a federal 

advisory committee does not disqualify 

a candidate; however, it is HHS policy 

is to avoid excessive individual service 

on advisory committees and multiple 

committee memberships. Committee 

members are Special Government 

Employees (SGEs), requiring the filing 

of financial disclosure reports at the 

beginning and annually during their 

terms. CDC reviews potential candidates 

for HICPAC membership each year and 

provides a slate of nominees for 

consideration to the Secretary of HHS 

for final selection. HHS notifies selected 

candidates of their appointment near 

the start of the term in July 2023, or as 

soon as the HHS selection process is 

completed. Note that the need for 

different expertise varies from year to 

year and a candidate who is not selected 

in one year may be reconsidered in a 

subsequent year. Candidates should 

submit the following items: 

D Current curriculum vitae, including 

complete contact information 

(telephone numbers, mailing address, 

email address) 

D At least one letter of 

recommendation from person(s) not 

employed by the U.S. Department of 

Health and Human Services. 

(Candidates may submit letter(s) from 

current HHS employees if they wish, 

but at least one letter must be submitted 

by a person not employed by an HHS 

agency (e.g., CDC, NIH, FDA, etc.). 

Nominations may be submitted by the 

candidate him- or herself, or by the 

person/organization recommending the 

candidate. 

The Director, Strategic Business 

Initiatives Unit, Office of the Chief 

Operating Officer, Centers for Disease 

Control and Prevention, has been 

delegated the authority to sign Federal 

Register notices pertaining to 

announcements of meetings and other 

committee management activities, for 

both the Centers for Disease Control and 

Prevention and the Agency for Toxic 

Substances and Disease Registry. 

Kalwant Smagh, 

Director, Strategic Business Initiatives Unit, 

Office of the Chief Operating Officer, Centers 

for Disease Control and Prevention. 

[FR Doc. 2022–07236 Filed 4–5–22; 8:45 am] 

BILLING CODE 4163–18–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Disease Control and 

Prevention 

Public Health Determination and Order 

Regarding Suspending the Right To 

Introduce Certain Persons From 

Countries Where a Quarantinable 

Communicable Disease Exists 

AGENCY: Centers for Disease Control and 

Prevention (CDC), Department of Health 

and Human Services (HHS). 

ACTION: General notice. 

SUMMARY: The Centers for Disease 

Control and Prevention (CDC), a 

component of the U.S. Department of 

Health and Human Services (HHS), is 

hereby issuing this Public Health 

Determination and Order Regarding 

Suspending the Right to Introduce 

Certain Persons from Countries Where a 

Quarantinable Communicable Disease 

Exists (Public Health Determination and 

Termination). This Public Health 

Determination and Termination 

terminates 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 implementing regulations. This 

Termination will be implemented on 

May 23, 2022. 

DATES: The Termination issued in this 

Order will be implemented on May 23, 

2022. 

FOR FURTHER INFORMATION CONTACT: 

Candice Swartwood, 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. Telephone: 404–498–1600. 

Email: dgmqpolicyoffice@cdc.gov. 

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, 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 ports of entry (POE) and U.S. 

Border Patrol stations by significantly 

reducing the number and density of 

covered noncitizens held in these 

congregate settings, thereby reducing 

risks to U.S. citizens and residents, 

Department of Homeland Security and 

U.S. Customs and Border Patrol 

personnel and noncitizens at the 

facilities, and local healthcare systems. 

CDC deemed the measures included in 

the CDC Orders necessary for the 

protection of public health during the 

ongoing COVID–19 pandemic. 

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.’’ 


lotter on DSK11XQN23PROD with NOTICES1
19942 Federal Register / Vol. 87, No. 66 / Wednesday, April 6, 2022 / Notices 

1Available at https://www.cdc.gov/coronavirus/

2019-ncov/downloads/CDC-Order-SuspendingRight-to-Introduce-_Final_8-2-21.pdf (last visited 

Mar. 7, 2022); see also 86 FR 42828 (Aug. 5, 2021). 

2 ‘‘CDC Orders’’ issued under 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). 

3See infra I. 

4The August Order specifically excepted 

unaccompanied noncitizen children (UC) and 

incorporated an exception for UC issued by CDC on 

July 16, 2021 (July Exception). 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/Notice

UnaccompaniedChildren.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). On 

March 11, 2022, CDC fully terminated the August 

Order and all prior orders issued under the same 

authorities with respect to UC. See https://

www.cdc.gov/coronavirus/2019-ncov/more/pdf/

NoticeUnaccompaniedChildren-update.pdf. 

Three groups typically make up covered 

noncitizens—single adults (SA), 

individuals in family units (FMU), and 

unaccompanied noncitizen children 

(UC). 

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. On March 11, 2022, CDC fully 

terminated the August Order and all 

previous orders issued under 42 U.S.C. 

265, 268 and 42 CFR 71.40 with respect 

to UC based on a thorough 

determination of the status of the 

COVID–19 pandemic, an analysis of the 

specific care available to UC, and the 

absence of legitimate countervailing 

reliance interests on the CDC Orders. 

The instant Public Health Determination 

and Termination considers the current 

status of the pandemic, including the 

receding numbers of COVID–19 cases, 

hospitalizations, and deaths most 

recently related to the Omicron variant, 

and constitutes the reassessment 

concluding on March 30, 2022. 

Based on this analysis, the CDC 

Director finds that, pursuant to 42 

U.S.C. 265 and 42 CFR 71.40, there is 

no longer a serious danger that the entry 

of covered noncitizens, as defined by 

the August Order, into the United States 

will result in the introduction, 

transmission, and spread of COVID–19 

and that a suspension of the 

introduction of covered noncitizens is 

no longer required in the interest of 

public health. While the introduction, 

transmission, and spread of COVID–19 

into the United States is likely to 

continue to some degree, the crossborder spread of COVID–19 due to 

covered noncitizens does not present 

the serious danger to public health that 

it once did, given the range of mitigation 

measures now available. CDC continues 

to stress the need for robust COVID–19 

mitigation measures at the border, 

including vaccination and continued 

masking in congregate settings. CDC has 

determined that the extraordinary 

measure of an order under 42 U.S.C. 265 

is no longer necessary, particularly in 

light of less burdensome measures that 

are now available to mitigate the 

introduction, transmission, and spread 

of COVID–19. Therefore, CDC is 

terminating the August Order and all 

related prior orders issued pursuant to 

42 U.S.C. 265, 268 and 42 CFR 71.40. 

This Termination will be implemented 

on May 23, 2022, to enable the 

Department of Homeland Security 

(DHS) time to implement appropriate 

COVID–19 protocols, such as scaling up 

a program to offer COVID–19 

vaccinations to migrants, and prepare 

for full resumption of regular migration 

under Title 8 authorities. 

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. 

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/cdcresponse/

Final-CDC-Order-ProhibitingIntroduction-of-Persons.pdf. 

U.S. DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Disease Control and 

Prevention (CDC) 

Order Under Sections 362 & 365 of the 

Public Health Service Act (42 U.S.C. 

265, 268) and 42 CFR 71.40 

Public Health Determination and Order 

Regarding the Right To Introduce 

Certain Persons From Countries Where 

a Quarantinable Communicable Disease 

Exists 

Executive Summary 

The Centers for Disease Control and 

Prevention (CDC), a component of the 

U.S. Department of Health and Human 

Services (HHS), is hereby issuing this 

Public Health Determination and Order 

Regarding Suspending the Right to 

Introduce Certain Persons from 

Countries Where a Quarantinable 

Communicable Disease Exists (Public 

Health Determination and Termination). 

This Public Health Determination and 

Termination terminates 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 this 

Termination will be implemented on 

May 23, 2022. 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.4 The August Order 

states that CDC will reassess at least 

every 60 days whether the Order 

remains necessary to protect the public 

health. Based on the public health 

landscape, the current status of the 

COVID–19 pandemic, and the 

procedures in place for the processing of 

covered noncitizens, taking into account 

the inherent risks of transmission of 

SARS–CoV–2 in congregate settings, 

CDC has determined that a suspension 

of the right to introduce such covered 

noncitizens is no longer 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. This Termination will be 

implemented on May 23, 2022, to 

enable the Department of Homeland 

Security (DHS) to implement 

appropriate COVID–19 mitigation 

protocols, such as scaling up a program 

to provide COVID–19 vaccinations to 

migrants, and prepare for full 

resumption of regular migration 

processing under Title 8 authorities. 

Until that date, it is CDC’s expectation 

that DHS will continue to apply 

exceptions outlined in the August Order 

to covered noncitizens as appropriate, 

including the exception based on the 

totality of an individual’s circumstances 

on a case-by-case basis. 

Outline of Determination and Order 

I. Background 

A. Evolution of the COVID–19 Pandemic 

and the U.S. Government Response 

1. First Wave—January to June 2020 

2. Second Wave—June to August 2020 


lotter on DSK11XQN23PROD with NOTICES1
Federal Register / Vol. 87, No. 66 / Wednesday, April 6, 2022 / Notices 19943 

5Quarantinable communicable diseases are any 

of the communicable diseases listed in Executive 

Order 13295, as provided under 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). 

6See supra note 1. 

7Order 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). 

8Suspension 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). 

9See supra note 2. 

10POE 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. 

12A 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. 

13An 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. 

14CDC 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. 

16See supra note 4. 

17While SA, FMU, and UC are all processed by 

U.S. Customs and Border Protection (CBP), a 

component of DHS, following that initial intake, UC 

are referred to HHS’ Office of Refugee Resettlement 

(ORR) for care. See 86 FR 42828, 42835–37 

(describing the processing of noncitizen SA and 

FMU by DHS components, CBP and Immigration 

and Customs Enforcement (ICE), under both regular 

Title 8 immigration and under an order pursuant to 

42 U.S.C. 265). At both the CBP and ORR stages, 

UC receive special attention. This care and the 

distinct immigration processing available to UC 

compared to SA and FMU provided the basis for the 

exception of UC in the July Exception and the 

August Order. 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); see also 87 FR 15243, 

15246–47 (Mar. 17, 2022) (describing the different 

COVID–19 mitigation measures applied where UC 

are processed). 

18Texas v. Biden, No. 4:21–cv–0579–P, 2022 WL 

658579, at *16–18 (N.D. Tex. Mar. 4, 2022). 

19 86 FR 42828, 42841. 

3. Third Wave—Alpha Variant—September 

2020 to May 2021 

4. Fourth Wave—Delta Variant—June to 

October 2021 

5. Fifth Wave—Omicron Variant— 

November 2021 to March 2022 

B. Current Status of the COVID–19 

Pandemic 

1. Community Levels 

2. Healthcare Systems and Resources 

3. Mitigation Measures 

a. Test Availability 

b. Vaccines and Boosters 

c. Treatments 

4. Congregate Settings 

5. DHS Mitigation Measures 

II. Public Health Determination 

III. Legal Considerations 

A. Temporary Nature of Orders Under 42 

U.S.C. 265 and Absence of Reliance 

Interests 

B. Basis for Termination Under 42 U.S.C. 

265, 268 and 42 CFR 71.40 

IV. Issuance and Implementation 

A. Implementation of This Termination 

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–19.9 The 

August Order applied specifically to 

‘‘covered noncitizens,’’ defined as 

‘‘persons traveling from Canada or 

Mexico (regardless of their country of 

origin) who would otherwise be 

introduced into a congregate setting in 

a POE or U.S. Border Patrol station 10 at 

or near the U.S. land and adjacent 

coastal borders subject to certain 

exceptions detailed below; this includes 

noncitizens who do not have proper 

travel documents, noncitizens whose 

entry is otherwise contrary to law, and 

noncitizens who are apprehended at or 

near the border seeking to unlawfully 

enter the United States between 

POE.’’ 11

Three groups typically make up 

covered noncitizens—single adults 

(SA),12 individuals in family units 

(FMU),13 and unaccompanied 

noncitizen children (UC).14 UC were 

specifically excepted from the August 

Order 15 based on its explicit 

incorporation by reference of CDC’s July 

Exception of UC.16 On March 11, 2022, 

CDC fully terminated the August Order 

and all previous orders issued under 42 

U.S.C. 265, 268 and 42 CFR 71.40 with 

respect to UC. This termination with 

respect to UC was based on a thorough 

determination of the current status of 

the COVID–19 pandemic as well as an 

analysis of the specific care available to 

UC17 and the absence of legitimate 

countervailing reliance interests, and 

was prioritized ahead of CDC’s 

reassessment for SA and FMU in light 

of the entry of a preliminary injunction 

by the U.S. District Court for the 

Northern District of Texas that was to go 

into effect on March 11, 2022, enjoining 

CDC from excepting UC from the August 

Order based solely on their status as 

UC.18

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, thereby reducing risks to U.S. 

citizens, U.S. nationals, lawful 

permanent residents, DHS and U.S. 

Customs and Border Protection (CBP) 

personnel and noncitizens at the 

facilities, and local healthcare systems. 

The measures included in the CDC 

Orders were deemed necessary for the 

protection of public health. 

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.19 CDC conducted its most 

recent reassessment on January 28, 

2022; in addition, a reassessment 

specific to UC was completed on March 

11, 2022. The instant Public Health 

Determination and Termination 

considers the current status of the 


lotter on DSK11XQN23PROD with NOTICES1
19944 Federal Register / Vol. 87, No. 66 / Wednesday, April 6, 2022 / Notices 

20COVID–19 Community Levels, Centers for 

Disease Control and Prevention, https://

www.cdc.gov/coronavirus/2019-ncov/science/ 

community-levels.html (updated Mar. 24, 2022); see 

infra I.B.1. 

21National COVID–19 Preparedness Plan—March 

2022, available at https://www.whitehouse.gov/wpcontent/uploads/2022/03/NAT-COVID-19- 

PREPAREDNESS-PLAN.pdf (last visited Mar. 30, 

2022). 

22Coronavirus disease (COVID–19) pandemic, 

World Health Organization, https://

covid19.who.int/ (last visited Mar. 30, 2022). 

23COVID Data Tracker, Centers for Disease 

Control and Prevention, https://covid.cdc.gov/

covid-data-tracker/#datatracker-home (last visited 

Mar. 30, 2022). 

24See Trends in Number of COVID–19 Cases and 

Deaths in the US Reported to CDC, by State/ 

Territory, Centers for Disease Control and 

Prevention, https://covid.cdc.gov/covid-datatracker/#trends_dailycases, noting a seven-day 

moving average of 26,190 cases on March 28, 2022. 

25Supra note 21. 

26Patel A, Jernigan DB. Initial Public Health 

Response and Interim Clinical Guidance for the 

2019 Novel Coronavirus Outbreak—United States, 

December 31, 2019–February 4, 2020. MMWR Morb 

Mortal Wkly Rep 2020;69:140–146. DOI: http://

dx.doi.org/10.15585/mmwr.mm6905e1. 

27 Id. 

28 Determination that a Public Health Emergency 

Exists, U.S. Department of Health and Human 

Services (Jan. 31, 2020), https://www.phe.gov/

emergency/news/healthactions/phe/Pages/2019- 

nCoV.aspx (last visited Mar. 30, 2022). 

29 Geographic Differences in COVID–19 Cases, 

Deaths, and Incidence—United States, February 12– 

April 7, 2020. MMWR Morb Mortal Wkly Rep 

2020;69:465–471. DOI: http://dx.doi.org/10.15585/ 

mmwr.mm6915e4. 

30 Id. 

31Case notifications from state, local and 

territorial public health jurisdictions, Centers for 

Disease Control and Prevention, https://

data.cdc.gov/Case-Surveillance/COVID-19-CaseSurveillance-Public-Use-Data/vbim-akqf, (last 

accessed Mar. 30, 2022); Provisional COVID–19 

Death Counts by Week Ending Date and State, 

Centers for Disease Control and Prevention, https:// 

data.cdc.gov/NCHS/Provisional-COVID-19-DeathCounts-by-Week-Ending-D/r8kw-7aab (last accessed 

Mar. 30, 2022); COVID–19 Reported Patient Impact 

and Hospital Capacity by State Timeseries, Unified 

Hospital Analytic, https://healthdata.gov/Hospital/ 

COVID-19-Reported-Patient-Impact-and-HospitalCapa/g62h-syeh (last accessed Mar. 30, 2022). 

32 Jernigan DB. Update: Public Health Response 

to the Coronavirus Disease 2019 Outbreak—United 

States, February 24, 2020. MMWR Morb Mortal 

Wkly Rep 2020;69:216–219. DOI: http://dx.doi.org/ 

10.15585/mmwr.mm6908e1. 

33 Id. 

34See supra note 26. 

pandemic, including the receding 

numbers of COVID–19 cases, 

hospitalizations, and deaths most 

recently related to the Omicron variant, 

and constitutes the reassessment 

concluding on March 30, 2022. This 

Determination and Termination also 

reflects the recent issuance of CDC’s 

COVID–19 Community Levels 

framework.20 Additionally, the National 

COVID–19 Preparedness Plan was 

recently updated to provide a roadmap 

to help the nation continue fighting 

COVID–19, while also allowing 

resumption of more normal routines.21

Based on the analysis below, the CDC 

Director finds that, pursuant to 42 

U.S.C. 265 and 42 CFR 71.40, there is 

no longer a serious danger that the entry 

of covered noncitizens, as defined by 

the August Order, into the United States 

will result in the introduction, 

transmission, and spread of COVID–19 

and that a suspension of the 

introduction of covered noncitizens is 

no longer required in the interest of 

public health. While the introduction, 

transmission, and spread of COVID–19 

into the United States is likely to 

continue to some degree, the crossborder spread of COVID–19 due to 

covered noncitizens does not present 

the serious danger to public health that 

it once did, given the range of mitigation 

measures now available. CDC continues 

to stress the need for robust COVID–19 

mitigation measures at the border, 

including vaccination and continued 

masking in congregate settings. CDC has 

determined that the extraordinary 

measure of an order under 42 U.S.C. 265 

is no longer necessary, particularly in 

light of less burdensome measures that 

are now available to mitigate the 

introduction, transmission, and spread 

of COVID–19. Therefore, as described 

below, CDC is terminating the August 

Order and all related prior orders issued 

pursuant to 42 U.S.C. 265, 268 and 42 

CFR 71.40. This Termination will be 

implemented on May 23, 2022, to 

enable DHS to implement appropriate 

COVID–19 protocols, such as scaling up 

a program to offer COVID–19 

vaccinations to migrants, and prepare 

for full resumption of regular migration 

under Title 8 authorities. 

A. Evolution of the COVID–19 Pandemic 

and the U.S. Government Response 

Since late 2019, SARS–CoV–2, the 

virus that causes COVID–19, has spread 

throughout the world, resulting in a 

pandemic. As of March 30, 2022, there 

have been over 480 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 975,000 deaths 

due to the disease 23 and is currently 

averaging around 26,000 new cases of 

COVID–19 a day as of March 28, 2022.24

The U.S. government response to the 

COVID–19 pandemic has focused on 

taking actions and providing guidance 

based on the best available scientific 

information. The United States has 

experienced five waves of the 

pandemic, each with its own unique 

epidemiologic characteristics.25 As the 

waves of COVID–19 cases 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 relaxed in favor of more nuanced, 

targeted, and narrowly tailored guidance 

that provides a less burdensome means 

of preventing and controlling the SARS– 

CoV–2 virus and COVID–19. Of note for 

this Determination are the multiple 

travel- and migration-related measures 

taken by the U.S. government in each 

phase. 

1. First Wave—January to June 2020 

SARS–CoV–2 was first identified as 

the cause of an outbreak of respiratory 

illness that began in Wuhan, Hubei 

Province, People’s Republic of China.26

The United States reported its first 

COVID–19 case on January 21, 2020,27

and the HHS Secretary declared 

COVID–19 a public health emergency 

on January 31, 2020.28 Community 

transmission was detected in the United 

States in February 2020.29 COVID–19 

cases initially spread in a small number 

of U.S. metropolitan areas, most notably 

in New York City and surrounding 

areas.30 The resulting first wave of the 

pandemic peaked in the United States 

on April 7, 2020, with two million cases 

(3% of cumulative cases) and over 

127,000 deaths (13% of cumulative 

deaths).31 During this period, public 

health officials monitored the situation 

closely and began instituting 

community-level nonpharmaceutical 

interventions such as school closures 

and physical distancing, in addition to 

promoting respiratory and hand hygiene 

practices.32 Vaccines and approved 

therapeutics were not available during 

this time.33

As public health officials learned 

more about the epidemiology of SARS– 

CoV–2, the U.S. government, state and 

local health departments, and other 

partners implemented aggressive 

measures to slow transmission of the 

virus in the United States.34 Many of the 

mitigation actions taken by the U.S. 

government during this wave involved 

travel and migration. The President 

issued a series of actions limiting entry 

into the United States, including 

proclamations suspending entry into the 

country of immigrants or 

nonimmigrants who were physically 

present within certain countries during 

the 14-day period preceding their entry 


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35See Proclamation 9984 (Jan. 31, 2020), 85 FR 

6709 (Feb. 5, 2020) (regarding the People’s Republic 

of China); Proclamation 9992 (Feb. 28, 2020), 85 FR 

12855 (Mar. 4, 2020) (regarding the Republic of 

Iran); Proclamation 9993 (Mar. 11, 2020), 85 FR 

15045 (Mar. 16, 2020) (regarding the Schengen Area 

of Europe); Proclamation 9996 (Mar. 14, 2020), 85 

FR 15341 (Mar. 18, 2020) (regarding the United 

Kingdom and Republic of Ireland); and 

Proclamation 10041, as amended by Proclamation 

10042 (May 24, 2020), 85 FR 31933 (May 28, 2020) 

(regarding the Federative Republic of Brazil). 

36See 85 FR 16547 (Mar. 24, 2020); 85 FR 16548 

(Mar. 24, 2020). 

37Supra note 32; see also CDC Advises Travelers 

to Avoid All Nonessential Travel to China, Centers 

for Disease Control and Prevention, https://

www.cdc.gov/media/releases/2020/s0128-travelersavoid-china.html (Jan. 28, 2020), advising travelers 

to avoid all nonessential travel to countries with 

known viral spread. 

38 85 FR 16628 (Mar. 24, 2020); extended 85 FR 

21004 (Apr. 15, 2020); see also Moriarty LF, 

Plucinski MM, Marston BJ, et al. Public Health 

Responses to COVID–19 Outbreaks on Cruise 

Ships—Worldwide, February–March 2020. MMWR 

Morb Mortal Wkly Rep 2020;69:347–352. DOI: 

http://dx.doi.org/10.15585/mmwr.mm6912e3. 

39See 85 FR 16559 (Mar. 24, 2020). 

40See 85 FR 17060 (Mar. 26, 2020). 

41See supra note 7. 

42Oster AM, Kang GJ, Cha AE, et al. Trends in 

Number and Distribution of COVID–19 Hotspot 

Counties—United States, March 8–July 15, 2020. 

MMWR Morb Mortal Wkly Rep 2020;69:1127–1132. 

DOI: http://dx.doi.org/10.15585/mmwr.mm6933e2. 

43Payne DC, Smith-Jeffcoat SE, Nowak G, et al. 

SARS–CoV–2 Infections and Serologic Responses 

from a Sample of U.S. Navy Service Members—USS 

Theodore Roosevelt, April 2020. MMWR Morb 

Mortal Wkly Rep 2020;69:714–721. DOI: http://

dx.doi.org/10.15585/mmwr.mm6923e4. 

44 Dyal JW, Grant MP, Broadwater K, et al. 

COVID–19 Among Workers in Meat and Poultry 

Processing Facilities—19 States, April 2020. 

MMWR Morb Mortal Wkly Rep 2020;69:557–561. 

DOI: http://dx.doi.org/10.15585/mmwr.mm6918e3; 

see also Hagan LM, Williams SP, Spaulding AC, et 

al. Mass Testing for SARS–CoV–2 in 16 Prisons and 

Jails—Six Jurisdictions, United States, April–May 

2020. MMWR Morb Mortal Wkly Rep 

2020;69:1139–1143. DOI: http://dx.doi.org/

10.15585/mmwr.mm6933a3; Njuguna H, Wallace 

M, Simonson S, et al. Serial Laboratory Testing for 

SARS–CoV–2 Infection Among Incarcerated and 

Detained Persons in a Correctional and Detention 

Facility—Louisiana, April–May 2020. MMWR Morb 

Mortal Wkly Rep 2020;69:836–840. DOI: http://

dx.doi.org/10.15585/mmwr.mm6926e2. 

45Ellington S, Strid P, Tong VT, et al. 

Characteristics of Women of Reproductive Age with 

Laboratory-Confirmed SARS–CoV–2 Infection by 

Pregnancy Status—United States, January 22–June 

7, 2020. MMWR Morb Mortal Wkly Rep 

2020;69:769–775. DOI: http://dx.doi.org/10.15585/

mmwr.mm6925a1. 

46CDC calls on Americans to wear masks to 

prevent COVID–19 spread (press release), Centers 

for Disease Control and Prevention, https://

www.cdc.gov/media/releases/2020/p0714-

americans-to-wear-masks.html (Jul. 14, 2020) 

(noting the growing body of evidence supporting 

cloth face coverings as a source control to help 

prevent the person wearing the mask from 

spreading COVID–19 to others; the main protection 

individuals gain from masking occurs when others 

in their communities also wear face coverings). 

47Hendrix MJ, Walde C, Findley K, Trotman R. 

Absence of Apparent Transmission of SARS–CoV– 

2 from Two Stylists After Exposure at a Hair Salon 

with a Universal Face Covering Policy—Springfield, 

Missouri, May 2020. MMWR Morb Mortal Wkly Rep 

2020;69:930–932. DOI: http://dx.doi.org/10.15585/

mmwr.mm6928e2. 

48Operation Warp Speed: Accelerated COVID–19 

Vaccine Development Status and Efforts to Address 

Manufacturing Challenges, Government 

Accountability Office, https://www.gao.gov/

products/gao-21-319 (Feb. 11, 2021). 

49See 85 FR 44085 (July 21, 2020). 

50See 85 FR 55292 (Sept. 4, 2020). The CDC 

Director subsequently renewed the ‘‘eviction 

moratorium’’ Order until March 31, 2021 (86 FR 

8020 (Feb. 3, 2021)), then modified and extended 

the Order until June 30, 2021 (86 FR 16731 (Mar. 

31, 2021)) and extended the Order until July 31, 

2021 (86 FR 34010 (Jun. 28, 2021)). On August 3, 

2021, the CDC Director announced a new Order to 

temporarily halt residential evictions in 

communities with substantial or high transmission 

of COVID–19 to prevent the further spread of 

COVID–19 (86 FR 43244 (Aug. 6, 2021)). 

51Science Brief: Emerging SARS–CoV–2 

Variants—Updated, Centers for Disease Control and 

Prevention, https://www.cdc.gov/coronavirus/2019- 

ncov/science/science-briefs/scientific-briefemerging-variants.html (updated Jan. 28, 2021). 

52Per internal CDC calculations. 

53COVID–19 vaccines were initially available 

only for those persons with higher risk of COVID– 

19, such as immunocompromised individuals and 

healthcare workers, but access was subsequently 

expanded to the general population aged 16 years 

and older. The U.S. Food and Drug Administration 

(FDA) issued emergency use authorizations for 

three COVID–19 vaccines: Two mRNA vaccines 

(produced by Pfizer-BioNTech and Moderna) and 

one viral vector vaccine (produced by Johnson & 

Continued 

or attempted entry,35 and Canada and 

Mexico joined the United States in 

temporarily restricting travelers across 

land borders for non-essential 

purposes.36 CDC began screening 

travelers from certain countries at 

airports and issued several travel health 

notices 37 and, following a series of 

COVID–19 outbreaks on cruise ships, 

issued a No Sail Order and Suspension 

of Further Embarkation.38

It was in the context of this initial 

wave of the pandemic and travel- and 

migration-related actions that the CDC 

Director promulgated an interim final 

rule at 42 CFR 71.40 implementing his 

authority under 42 U.S.C. 265, 268 39

and issued an Order under the interim 

final rule suspending the introduction 

of certain ‘‘covered aliens’’ on March 20, 

2020 (March Order).40 The March Order 

sought to avert the serious danger of the 

introduction of COVID–19 into the land 

POEs and Border Patrol stations at or 

near the United States borders with 

Canada and Mexico due to encountered 

noncitizens otherwise being held in the 

common areas of the facilities and in 

close proximity to one another as they 

undergo immigration processing. The 

March Order applied to SA, FMU, and 

UC and was subsequently amended and 

extended in April and May 2020.41

2. Second Wave—June to August 2020 

During the second wave of the 

pandemic, from approximately June to 

August 2020, COVID–19 spread 

geographically throughout the United 

States.42 Case numbers peaked on July 

14, 2020, and in total the second wave 

resulted in approximately 2.6 million 

COVID–19 cases (4% of cumulative 

cases) and over 75,000 deaths (4% of 

cumulative deaths). During the second 

wave, public health officials and 

scientists learned more about COVID–19 

transmission, including asymptomatic 

transmission,43 particularly in 

congregate, high-density settings, such 

as meat-packing plants and correctional 

facilities.44 The medical community 

learned more about potential effects of 

COVID–19 on specific populations, such 

as pregnant people,45 the elderly, and 

immunocompromised people. In July 

2020, CDC announced that cloth face 

coverings (masks) are a critical public 

health tool in reducing the spread of 

COVID–19, particularly when used 

universally within communities.46 As 

stay-at-home orders issued during the 

first wave were lifted, CDC continued to 

promote broad implementation of 

masking and face covering 

requirements.47 One pivotal marker of 

the second wave was the creation of 

Operation Warp Speed, a partnership 

between the HHS and Department of 

Defense (DOD) aimed to help accelerate 

the development of a COVID–19 

vaccine.48

As concerns about asymptomatic 

transmission grew and vaccines and 

therapeutics were still being developed, 

the U.S. government continued to take 

steps to protect the public health. CDC 

extended the No Sail Order and 

Suspension of Further Embarkation for 

cruise ships 49 and, as the second wave 

was being replaced by the third, issued 

an Order temporarily halting evictions 

in the United States due to the potential 

for accelerated transmission in 

congregate settings such as shelters for 

displaced persons.50 The CDC Order 

under 42 U.S.C. 265, 268 and 42 CFR 

71.40 issued in March 2020 and 

amended and extended in April and 

May 2020, continued to be in place 

throughout this period. 

3. Third Wave—Alpha Variant— 

September 2020 to May 2021 

COVID–19 variants, including the 

B.1.1.7 (Alpha) variant, emerged in the 

fall of 2020, heralding the third wave of 

the pandemic 51 and resulting in 22.5 

million COVID–19 cases (34% of 

cumulative cases) and over 398,000 

deaths (21% of cumulative deaths) in 

the United States.52 The third wave 

lasted from approximately September 

2020 to May 2021 and coincided with 

the initial availability of vaccines for 

COVID–19 53 and increased availability 


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19946 Federal Register / Vol. 87, No. 66 / Wednesday, April 6, 2022 / Notices 

Johnson/Janssen); see generally https://

www.fda.gov/emergency-preparedness-andresponse/mcm-legal-regulatory-and-policyframework/emergency-useauthorization#coviddrugs; Dooling K, McClung N, 

Chamberland M, et al. The Advisory Committee on 

Immunization Practices’ Interim Recommendation 

for Allocating Initial Supplies of COVID–19 

Vaccine—United States, 2020. MMWR Morb Mortal 

Wkly Rep 2020;69:1857–1859. DOI: http://

dx.doi.org/10.15585/mmwr.mm6949e1. In May 

2021, adolescents 12 to 15 years old became eligible 

to receive COVID–19 vaccines. Wallace M, 

Woodworth KR, Gargano JW, et al. The Advisory 

Committee on Immunization Practices’ Interim 

Recommendation for Use of Pfizer-BioNTech 

COVID–19 Vaccine in Adolescents Aged 12–15 

Years—United States, May 2021. MMWR Morb 

Mortal Wkly Rep 2021;70:749–752. DOI: http://

dx.doi.org/10.15585/mmwr.mm7020e1. 

54U.S. Food and Drug Administration, Emergency 

Use Authorization, https://www.fda.gov/emergencypreparedness-and-response/mcm-legal-regulatoryand-policy-framework/emergency-useauthorization#coviddrugs (last accessed Mar. 30, 

2022). 

55CDC to Require Negative COVID–19 Test for Air 

Travelers from the United Kingdom to the U.S., 

Centers for Disease Control and Prevention, https:// 

www.cdc.gov/media/releases/2020/s1224-CDC-torequire-negative-test.html (Dec. 24, 2020). 

56See 86 FR 7387 (Jan. 26, 2021). 

57CDC has issued orders and guidance focusing 

on the ‘‘travel context,’’ which encompasses both 

conveyances and transportation hubs, because these 

are locations where large numbers of people may 

gather and physical distancing can be difficult. 

Furthermore, many people need to take public 

transportation for their livelihoods. Passengers 

(including young children) may be unvaccinated 

and some on board, including personnel operating 

the conveyances or working at the transportation 

hub, may have underlying health conditions that 

cause them to be at increased risk of severe illness 

(i.e., those who might not be protected by 

vaccination because of weakened immune systems). 

Such people may not have the option to disembark 

or relocate to another area of the conveyance. 

Transportation hubs are also places where people 

depart to different geographic locations, both across 

the United States and around the world. Therefore, 

an exposure in a transportation hub can have 

consequences to many destination communities if 

people become infected after they travel. See 

Requirement for Face Masks on Public 

Transportation Conveyances and at Transportation 

Hubs, Centers for Disease Control and Prevention, 

https://www.cdc.gov/coronavirus/2019-ncov/

travelers/face-masks-public-transportation.html 

(updated Feb. 25, 2022). 

58 Id. 

59This included restrictions and suspension of 

entry of noncitizens (immigrants and 

nonimmigrants) who were present within the 

European Schengen Area, the United Kingdom 

(excluding overseas territories outside of Europe), 

the Republic of Ireland, the Federative Republic of 

Brazil, the Republic of South Africa, and the 

Republic of India in the 14-day period prior to 

attempted entry. See Proclamation 10143 (Jan. 25, 

2021), 86 FR 7467 (Jan. 28, 2021) (regarding the 

Schengen Area of Europe, the United Kingdom, the 

Republic of Ireland, the Federative Republic of 

Brazil, and the Republic of South Africa); 

Proclamation 10199 (Apr. 30, 2021), 86 FR 24297 

(May 6, 2021) (regarding the Republic of India). 

60See 86 FR 59720 (Oct. 28, 2021). The Order was 

extended in April, May, and October 2021. 

61See 85 FR 56424 (Sept. 11, 2020). 

62Order Suspending the Right to Introduce 

Certain Persons from Countries Where a 

Quarantinable Communicable Disease Exists, 85 FR 

65806 (Oct. 16, 2020). 

63For example, on November 18, 2020, the 

United States District Court for the District of 

Columbia preliminarily enjoined the U.S. 

government from expelling UC pursuant to the 

October 2020 Order. PJES v. Mayorkas, No. 1:20– 

cv–02245 (D.D.C.), Dkt. Nos. 79–80. While 

prohibited from expelling UC, the U.S. government 

worked to create solutions for the appropriate care 

of UC pursuant to regular immigration authorities. 

On Friday, January 29, 2021, the United States 

Court of Appeals for the District of Columbia 

Circuit granted a stay pending appeal of the District 

Court’s preliminary injunction (PJES v. Mayorkas, 

No. 20–5357, Doc. No. 1882899), thereby permitting 

CDC and DHS to resume enforcement of the October 

Order and immediately expel UC. On January 30, 

2021, CDC exercised its discretion to temporarily 

except UC from expulsion pending the outcome of 

its public health reassessment of the October Order. 

See 86 FR 9942 (Feb. 17, 2021). 

64Per internal CDC calculations. 

65Trends in Number of COVID–19 Vaccinations 

in the US, Centers for Disease Control and 

Prevention, https://covid.cdc.gov/covid-datatracker/#vaccination-trends (last updated Mar. 29, 

2022). 

66See Proclamation 10294 (Oct. 25, 2021), 86 FR 

59603 (Oct. 28, 2021) (terminating the suspension 

of entry into the United States regarding the 

People’s Republic of China, the Republic of Iran, 

the Schengen Area of Europe, the United Kingdom 

and Republic of Ireland, the Federative Republic of 

Brazil, the Republic of South Africa, and the 

Republic of India). 

67 Including amending the 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/frproof-negative-test.html) to shorten the time 

window for predeparture testing to one day for air 

passengers who were not fully vaccinated against 

COVID–19; Order Requiring Airlines to Collect 

Contact Information for All Passengers Arriving into 

the United States (https://www.cdc.gov/quarantine/ 

order-collect-contact-info.html), and the Order 

Implementing Presidential Proclamation on Safe 

Resumption of Global Travel During the COVID–19 

Pandemic, which required all non-U.S.-citizen, 

non-immigrants, with limited exceptions, traveling 

to the United States by air to be fully vaccinated 

against COVID–19 and show proof of vaccination 

(https://www.cdc.gov/quarantine/order-safetravel.html). 

of therapeutics.54 Even as the third wave 

began to ebb, however, a new variant— 

B.1.617.2 (Delta)—began circulating in 

India and other countries. 

The U.S. government responded to 

the Alpha variant and resulting surge in 

cases with additional travel- and 

migration-related restrictions, beginning 

with a requirement for air passengers 

from the United Kingdom (where the 

Alpha variant was first identified) to 

present a negative COVID–19 test result 

before boarding a flight to the United 

States; 55 CDC subsequently expanded 

the predeparture testing requirement to 

air passengers departing to the United 

States from any foreign country.56 Due 

to the inherent risk of transmission of 

COVID–19 in the travel context,57 CDC 

also issued an Order requiring face 

masks to be worn while on conveyances 

traveling into, within, or out of the 

United States and at U.S. transportation 

hubs.58 Based on developments with 

respect to variants and the continued 

spread of COVID–19, the U.S. 

government expanded the list of 

countries from which entry into the 

United States was limited.59 CDC also 

announced a Conditional Sailing Order 

framework under which cruise ships 

could resume passenger operations only 

after meeting stringent public health 

mitigation measures, such as frequent 

testing of crew members.60

In October 2020, following the 

promulgation of the Final Rule for 42 

CFR 71.40,61 CDC published a new 

Order under 42 U.S.C. 265 and 268 and 

the regulation suspending the right to 

introduce certain covered persons into 

the United States.62 As with all prior 

CDC Orders, the October Order applied 

to ‘‘covered aliens,’’ which included 

certain SA, FMU, and UC seeking entry 

into the United States without valid 

travel documents and provided certain 

exceptions, including a case-by-case 

exception to be applied by CBP officers 

with supervisor approval upon a 

determination that an individual should 

be excepted from application of the 

Order based on the totality of the 

circumstances, including consideration 

of significant law enforcement, officer 

and public safety, humanitarian, and 

public health interests. The October 

Order was the subject of litigation 

regarding its application to both FMU 

and UC.63

4. Fourth Wave—Delta Variant—June to 

October 2021 

The COVID–19 pandemic’s fourth 

wave lasted from June to October 2021 

and was characterized by the spread of 

the Delta variant in the United States; 

during this period the United States 

experienced 9.8 million cases (15% of 

cumulative cases) and over 179,000 

deaths (9% of cumulative deaths).64

Vaccines were widely available during 

the fourth wave and uptake rose slightly 

throughout this period.65

Given the predictable global spread of 

the virus, the effectiveness of COVID–19 

vaccines, and the rising availability of 

COVID–19 vaccines globally, and 

recognizing the need to allow the 

domestic and global economy to 

continue recovering from the effects of 

the pandemic, the President issued a 

Proclamation reflecting the United 

States’ desire to move away from the 

country-by-country restrictions 

previously applied during the COVID– 

19 pandemic and to adopt an air travel 

policy that relies primarily on 

vaccination to advance the safe 

resumption of international air travel to 

the United States.66 The Proclamation 

was followed by a suite of travel-related 

mitigation measures.67 Even as available 


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68See 85 FR 55292 (Sept. 4, 2020). 

69See 86 FR 43244 (Aug. 6, 2021). 

70See supra note 63. 

71 86 FR 42828, 42837–38. 

72Omicron was first reported to the World Health 

Organization (WHO) by South Africa on November 

24, 2021; 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. 

73 Iuliano AD, Brunkard JM, Boehmer TK, et al. 

Trends in Disease Severity and Health Care 

Utilization During the Early Omicron Variant 

Period Compared with Previous SARS–CoV–2 High 

Transmission Periods—United States, December 

2020–January 2022. MMWR Morb Mortal Wkly Rep. 

ePub: 25 January 2022. DOI: http://dx.doi.org/

10.15585/mmwr.mm7104e4; see also supra note 26. 

74Per internal CDC calculations. 

75Woodworth KR, Moulia D, Collins JP, et al. The 

Advisory Committee on Immunization Practices’ 

Interim Recommendation for Use of PfizerBioNTech COVID–19 Vaccine in Children Aged 5– 

11 Years—United States, November 2021. MMWR 

Morb Mortal Wkly Rep 2021;70:1579–1583. DOI: 

http://dx.doi.org/10.15585/mmwr.mm7045e1. 

76Omicron Variant: What You Need to Know, 

Centers for Disease Control and Prevention, https:// 

www.cdc.gov/coronavirus/2019-ncov/variants/

omicron-variant.html (updated Feb. 2, 2022). See 

also Tenforde MW, Self WH, Gaglani M, et al. 

Effectiveness of mRNA Vaccination in Preventing 

COVID–19–Associated Invasive Mechanical 

Ventilation and Death—United States, March 2021– 

January 2022. MMWR Morb Mortal Wkly Rep. 

ePub: 18 March 2022. DOI: http://dx.doi.org/

10.15585/mmwr.mm7112e1. 

77The public health emergency determination 

has been renewed by the Secretary of HHS at 90- 

day intervals since January 2020, most recently on 

January 14, 2022. See Renewal of Determination 

That A Public Health Emergency Exists, Office of 

the Assistant Secretary for Preparedness and 

Response, https://aspr.hhs.gov/legal/PHE/Pages/

COVID19-14Jan2022.aspx (last visited Mar. 9. 

2022). 

78Those restrictions included suspending entry 

into the United States of immigrants or 

nonimmigrants who were physically present within 

eight southern African countries during the 14-day 

period preceding their entry or attempted entry into 

the United States. See Proclamation 10315 (Nov. 26, 

2021), 86 FR 68385 (Dec. 1, 2021). 

79See Proclamation 10329 (Dec. 28, 2021), 87 FR 

149 (Jan. 3, 2022) (terminating Proclamation 10315 

regarding eight southern African countries). 

80A person is considered up to date after 

receiving all recommended COVID–19 vaccines, 

including any booster dose(s) when eligible, Stay 

Up to Date with Your Vaccines, Centers for Disease 

Control and Prevention, https://www.cdc.gov/

coronavirus/2019-ncov/vaccines/stay-up-todate.html (issued Jan. 2022, updated Mar. 22, 2022). 

81CDC Updates and Shortens Recommended 

Isolation and Quarantine Period for General 

Population, Centers for Disease Control and 

Prevention, https://www.cdc.gov/media/releases/

2021/s1227-isolation-quarantine-guidance.html 

(Dec. 27, 2021). Specifically, the length of isolation 

period for the general public was shortened to five 

days, followed by five days of wearing a well-fitting 

mask. See also What We Know About Quarantine 

and Isolation, Centers for Disease Control and 

Prevention, https://www.cdc.gov/coronavirus/2019- 

ncov/if-you-are-sick/quarantine-isolationbackground.html (updated Feb. 25, 2022). 

82Requirement for Proof of Negative COVID–19 

Test or Recovery from COVID–19 for All Air 

Passengers Arriving in the United States, updating 

COVID–19 testing requirements (available at 

https://www.cdc.gov/quarantine/pdf/AmendedGlobal-Testing-Order_12-02-2021-p.pdf). All air 

passengers two years or older with a flight 

departing to the United States from a foreign 

country starting on December 6, 2021, are required 

show a negative COVID–19 viral test result taken no 

more than one day before travel, or documentation 

of having recovered from COVID–19 in the past 90 

days, before they board their flight. This 

requirement remains in place. 

83See 87 FR 3429 (Jan. 24, 2022) (applying 

restrictions to the U.S.-Canada border) and 87 FR 

3425 (applying restrictions to the U.S.-Mexico 

border). 

mitigation measures allowed the U.S. 

government to shift its pandemic 

approach in the travel context, the 

country continued to see a surge in 

COVID–19 cases caused by the Delta 

variant necessitating different measures 

in non-travel contexts. For example, as 

a result, the CDC Director extended the 

aforementioned eviction moratorium 68

for persons in counties experiencing 

substantial or high rates of 

transmission.69

During the fourth wave, CDC also 

issued the July Exception excepting UC 

from the October 2020 Order, which 

followed CDC’s decision in January 

2021 to temporarily except UC from 

expulsion pending a public health 

reassessment of the October Order.70

The October 2020 Order was 

subsequently replaced by the August 

Order under 42 U.S.C. 265 and 268 and 

42 CFR 71.40, which fully incorporated 

the July Exception. The August Order 

explained why the mitigation measures 

specific to UC and discussed in the July 

Exception were not available to SA and 

FMU and, thus, why the August Order 

applied only to SA and FMU.71 As with 

many of the other actions taken by the 

U.S. government during this wave, the 

August Order was predicated, in part, 

on the significant increase in 

community transmission levels brought 

forth by the Delta variant. 

5. Fifth Wave—Omicron Variant— 

November 2021 to March 2022 

The highly infectious SARS–CoV–2 

variant B.1.1.529 (Omicron) is 

responsible for the currently receding 

fifth wave of the pandemic. The fifth 

wave resulted in an extraordinary and 

unparalleled increase in COVID–19 

cases around the world.72 Although the 

emergence of the Omicron variant 

resulted in the highest reported 

numbers of cases and hospitalizations 

during the pandemic, disease severity 

indicators, including hospital length of 

stay, intensive care unit admissions, and 

deaths, remained lower than during 

previous pandemic waves.73 As a result 

of the Omicron surge, the United States 

experienced almost 24 million cases 

(36% of cumulative cases); given this 

volume of cases, however, the resulting 

number of deaths in the United States 

(163,000 deaths, or 9% of cumulative 

deaths) was comparatively small.74

Vaccination efforts continued across the 

country during this fifth wave and were 

expanded to include children aged 5 to 

11 years.75 Despite breakthrough cases 

due to Omicron, vaccines continued to 

provide substantial protection against 

severe illness, hospitalizations, and 

deaths due to COVID–19.76

Although the COVID–19 public health 

emergency continues,77 scientific 

understanding about the epidemiology 

of COVID–19 and its variants as well as 

the effectiveness of pharmaceuticals and 

nonpharmaceutical interventions have 

substantially expanded, allowing the 

U.S. government and CDC to transition 

to a more narrowly tailored set of tools 

to prevent and control the spread of the 

SARS–CoV–2 virus and COVID–19. The 

U.S. government continues to pivot 

away from country-specific measures. 

Following the temporary issuance of 

country-based restrictions as Omicron 

emerged,78 all country-based 

restrictions were later lifted by the 

President, as recommended by CDC.79

Based on an increasing body of 

evidence, CDC recommended that 

everyone be vaccinated and remain up 

to date with vaccines, including 

boosters for those eligible.80 As more 

information about the Omicron variant 

and vaccine effectiveness became 

available, CDC calibrated its mitigation 

measures in accordance with the 

epidemiology of the virus and the 

different characteristics of the 

predominant variants. This included 

shortening the recommended duration 

of quarantine and isolation for most 

members of the general public in 

community settings 81 and also 

shortening the timeframe for its COVID– 

19 testing requirements for all air 

passengers boarding flights to the 

United States.82 DHS also required that 

all inbound non-citizen, non-lawful 

permanent residents traveling to the 

United States via land POE—whether 

for essential or non-essential reasons— 

must provide proof of full COVID–19 

vaccination status upon request.83

These refinements in policy reflect 

CDC’s increased understanding of the 

science and its desire to tailor 

mitigation measures so that they are no 

more burdensome than necessary. The 

ability of CDC to be responsive to the 

public health landscape and adjust such 


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84See supra note 24, citing a seven-day moving 

average of 806,324 cases on January 15, 2022 (last 

updated Mar. 29, 2022). 

85 Id. (noting a peak of 806,324 seven-day moving 

average number of cases to 26,190 seven-day 

moving average number of cases on March 29, 

2022). 

86COVID 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). 

87See New Admissions of Patients with 

Confirmed COVID–19, United States, Centers for 

Disease Control and Prevention, https://

covid.cdc.gov/covid-data-tracker/#new-hospitaladmissions (last updated Mar. 28, 2022); see also 

supra note 24, noting a peak of 4,172 seven-day 

moving average number of deaths declining to 644 

seven-day moving average number of deaths on 

March 29, 2022. 

88 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-monitoringcommunity-levels.html (updated Mar. 4, 2022); 

Nationwide COVID–19 Infection- and VaccinationInduced Antibody Seroprevalence (Blood 

donations), Centers for Disease Control and 

Prevention, https://covid.cdc.gov/covid-datatracker/#nationwide-blood-donor-seroprevalence 

(last updated Feb. 18, 2022). 

89 Variant Proportions, Centers for Disease 

Control and Prevention, https://covid.cdc.gov/

covid-data-tracker/#variant-proportions (showing 

data for the week ending March 26, 2022). 

90Transcript 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/stateof-the-union-2022/ (Mar. 1, 2022). 

91 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. 

92 Id. 

93Supra note 1. 

94Supra note 88. 

95 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-Rationalesummary_COVID-19-Community-Levels_

2022.02.23.pptx (Feb. 23, 2022). 

96New 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 20. 

measures up and down is critical to 

successfully fighting the pandemic. 

During the fifth wave of the pandemic 

and as specified in the August Order, 

CDC reviewed the public health 

rationale underlying the need for the 

Order every 60 days. By the time of the 

second reassessment in late November 

2021 the public health situation with 

respect to COVID–19 was improving. 

However, the sudden emergence of the 

Omicron variant led CDC to find that 

the August Order continued to be 

necessary. Because case numbers 

remained historically high in January, 

CDC’s third public health reassessment 

determined that the need for the August 

Order remained. 

B. Current Status of the COVID–19 

Pandemic 

As a result of the Omicron variant, the 

United States recorded its highest 

seven-day moving average number of 

cases on January 15, 2022.84 Following 

this unprecedented peak, however, the 

number of COVID–19 cases in the 

United States began to rapidly decrease, 

falling by over 95% as of March 30, 

2022.85 After a brief period of continued 

increases,86 deaths and hospitalizations 

also reversed course and began a swift 

descent.87 Even at their peaks, however, 

the number of deaths and 

hospitalizations during Omicron were 

substantially lower than would have 

been expected from previous waves, 

based on the case counts. These 

welcomed changes were due, in part, to 

widespread population immunity 88 and 

a generally lower overall risk of severe 

disease due to the nature of the Omicron 

variant. 

As the overall COVID–19 case count 

decreases, CDC has observed an 

increased percentage of cases due to a 

newly detected subvariant of Omicron, 

BA.2. As of March 24, 2022, the BA.2 

subvariant is estimated to represent 

approximately 54.9% of sequenced 

cases in the United States.89 Experts do 

not expect this subvariant to lead to a 

large surge in cases or hospitalizations, 

due in part to the levels of immunity 

provided by other Omicron subvariants 

(B.1.1.529 and BA.1.1) and by 

vaccination. Should COVID–19 cases 

show signs of potentially straining the 

U.S. healthcare system in the future, 

CDC’s Community COVID–19 Levels 

framework described below better 

equips the country to swiftly respond. 

As the waves of the pandemic have 

surged and ebbed, so too have actions 

the U.S. government has taken in 

response to the pandemic. While earlier 

phases of the pandemic required 

extraordinary actions by the government 

and society at large, epidemiologic data, 

scientific knowledge, and the 

availability of public health mitigation 

measures, vaccines, and therapeutics 

have permitted the country to safely 

transition to more normal routines.90 As 

part of that transition, CDC is also 

shifting to more nuanced and narrowly 

tailored guidance that provides a less 

burdensome means of preventing and 

controlling the SARS–CoV–2 virus and 

COVID–19. 

1. Community COVID–19 Levels 

During the first four waves of the 

pandemic, CDC relied on a formula to 

calculate community transmission 

levels and update COVID–19 prevention 

strategies.91 These indicators reflected 

the goal of limiting transmission as 

vaccine availability increased.92 The 

CDC Director examined these indicators 

in conducting the public health 

assessment for the August Order.93

The COVID–19 pandemic has shifted 

to a new phase, however, due to the 

widespread uptake of highly effective 

COVID–19 vaccines, the accrual of high 

rates of vaccine- and infection-induced 

immunity at the population level, and 

the availability of effective therapeutics, 

testing, and masks or respirators.94 As a 

result, CDC released a new framework 

in February 2022, ‘‘COVID–19 

Community Levels,’’ reflecting a shift in 

focus from eliminating SARS–CoV–2 

transmission toward disease control and 

healthcare system protection.95 This 

new framework examines three 

currently relevant metrics for each U.S. 

county: 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.96 CDC 

determined that data on disease severity 

and healthcare system strain 

complement case rates, and that these 

data together are more informative for 


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97Supra note 88. 

98 Id. 

99See supra note 20. 

100COVID–19 Integrated County View, Centers for 

Disease Control and Prevention, https://

covid.cdc.gov/covid-data-tracker/#county-view?list_

select_state=all_states&list_select_county=all_

counties&datatype=CommunityLevels&null=CommunityLevels 

(last updated Mar. 31, 2022); see also infra note 152. 

101Per internal CDC calculations. 

102Supra note 73. 

103 Id. 

104Supra note 88. 

105See COVID Data Tracker Weekly Review: 

Interpretive Summary for March 4, 2022, Centers for 

Disease Control and Prevention, https://

www.cdc.gov/coronavirus/2019-ncov/covid-data/

covidview/past-reports/03042022.html (Mar. 4, 

2022), indicating that the whole community can be 

safe only when [everyone] take[s] steps to protect 

each other, even when the COVID–19 Community 

Level is low or medium. 

106Testing is available for free at 21,500 locations 

around the country. See supra note 21. 

107See COVID–19 Testing and Diagnostics 

Working Group (TDWG). U.S. Department of Health 

and Human Services, https://www.hhs.gov/

coronavirus/testing/testing-diagnostics-workinggroup/index.html (last visited Mar. 31, 2022) 

(defining the role of the COVID–19 TDWG, which 

develops testing-related guidance and provides 

targeted investments to expand the available testing 

supply and maximize testing capacity). 

108 Interim Guidance on Management of 

Coronavirus Disease 2019 (COVID–19) in 

Correctional and Detention Facilities, Centers for 

Disease Control and Prevention, https://

www.cdc.gov/coronavirus/2019-ncov/community/

correction-detention/guidance-correctionaldetention.html#Strategies (updated Feb. 15, 2022). 

109Supra note 65. 

110 In comparison, as of July 28, 2021, over 163 

million people in the United States (57.6% of the 

population 12 years or older) had been fully 

vaccinated and over 189 million people in the 

United States (66.8% of the population 12 years or 

older) had received at least one dose. Id.; see also 

COVID–19 Vaccinations in the United States, 

Centers for Disease Control and Prevention, https:// 

covid.cdc.gov/covid-data-tracker/#vaccinations 

(last updated Mar. 30, 2022). 

111Thompson MG, Natarajan K, Irving SA, et al. 

Effectiveness of a Third Dose of mRNA Vaccines 

Against COVID–19–Associated Emergency 

Department and Urgent Care Encounters and 

Hospitalizations Among Adults During Periods of 

Delta and Omicron Variant Predominance— 

VISION Network, 10 States, August 2021–January 

2022. MMWR Morb Mortal Wkly Rep 2022;71:139– 

145. DOI: http://dx.doi.org/10.15585/

mmwr.mm7104e3. 

public health recommendations for 

individual, organizational, and 

jurisdictional decisions than data on 

community transmission rates alone.97

This comprehensive approach to 

assessing COVID–19 Community Levels 

can inform decisions about layered 

COVID–19 prevention strategies, 

including testing and masking to reduce 

medically significant disease and limit 

strain on the healthcare system and 

other societal functions.98

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 should be 

implemented within a community.99 As 

of March 31, 2022, 94.9% of U.S. 

counties are classified at the low 

COVID–19 Community Level, 4.5% of 

U.S. counties are classified at the 

medium COVID–19 Community Level; 

only 0.5% of U.S. counties are classified 

at the high COVID–19 Community 

Level.100 Furthermore, 97.1% of the 

U.S. population lives in counties 

classified as ‘‘low,’’ 2.5% live in 

counties classified as ‘‘medium,’’ and 

0.4% live in counties classified as 

‘‘high.’’ 101

2. Healthcare Systems and Resources 

With the ebb of the fifth wave, the 

number of new hospital admissions of 

patients with confirmed COVID–19 has 

similarly receded. Daily new 

hospitalization admissions peaked with 

154,696 daily new admissions on 

January 15, 2022. The large number of 

cases in a very short time led to a high 

volume of hospitalizations that strained 

some local healthcare systems and, in 

some instances, impacted care for nonCOVID–19-related concerns.102 Despite 

this high volume of COVID–19 cases 

and hospitalizations, COVID–19 cases 

caused by the Omicron variant were, on 

average, less severe.103

The observed reduction in severity of 

COVID–19 cases and ongoing effective 

use of pharmaceutical interventions 

make it possible to minimize medically 

significant disease and prevent 

excessive strain on the healthcare 

sector, even with the occurrence of 

SARS–CoV–2 transmission.104

Accordingly, at this stage of the 

pandemic, data on disease severity and 

healthcare system strain complement 

case rates and result in a more 

comprehensive approach to assessing 

COVID–19 Community Levels. 

3. Mitigation Measures 

Effective public health mitigation 

measures have contributed to the vast 

majority of the U.S. population living in 

a county identified by CDC as having 

either a ‘‘low’’ or ‘‘medium’’ COVID–19 

Community Level. In addition to earlier 

public health measures, such as 

masking and physical distancing, the 

development and widespread 

deployment of COVID–19 tests, 

vaccines, and therapeutics have greatly 

reduced the transmission of the virus 

and severity of the disease throughout 

the United States and provided a new 

understanding of how prevention 

measures may be used to minimize the 

impact of COVID–19 on health and 

society.105 These measures and the 

resulting current status of the COVID–19 

pandemic are a major factor in CDC’s 

determination that the Orders issued 

under the authorities of 42 U.S.C. 265, 

268 and 42 CFR 71.40 suspending the 

right to introduce certain persons into 

the United States are no longer 

necessary to protect the public health. 

a. Test Availability 

Testing continues to be an essential 

part of COVID–19 mitigation due to the 

potential for asymptomatic and presymptomatic transmission. Compared to 

earlier in the pandemic, COVID–19 tests 

are widely available in the United 

States. During January 2022, Americans 

had access to over 480 million at-home 

tests in addition to rapid point of care 

and laboratory tests.106 With the 

additional testing capacity available 

through antigen tests, rapid testing can 

be implemented to identify infected 

persons for isolation and identification 

of close contacts for quarantine and 

testing if indicated.107

Testing is also particularly helpful in 

congregate settings, where testing 

facility residents and personnel can 

help facilitate early identification of 

increased infection rates and prompt 

mitigation actions to help avoid strain 

on facility operations.108 CDC 

recommends broad use of COVID–19 

tests among facility workforces and 

within the larger community; such 

workforce testing may decrease the 

necessity for testing residents in 

congregate settings. 

b. Vaccines and Boosters 

Since August 2021, the scientific 

community has made significant strides 

in the development and distribution of 

COVID–19 vaccines, including booster 

shots. When the August Order was 

issued, three COVID–19 vaccines were 

authorized by the U.S. Food and Drug 

Administration (FDA) for emergency 

use and recommended for all people 12 

years of age and up. While the daily 

count of total COVID–19 vaccine doses 

administered across the United States 

has plateaued, the cumulative number 

of people protected by COVID–19 

vaccination has grown since the August 

Order.109 As of March 30, 2022, over 

209 million people in the United States 

12 years of age or older (73.9% of the 

population 12 years or older) have been 

fully vaccinated and over 245 million 

people in the United States 12 years or 

older (86.6%) have received at least one 

dose.110 To address concerns with 

potential waning immunity,111 booster 

shots are now recommended for all 


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112CDC Expands Eligibility for COVID–19 Booster 

Shots to All Adults, Centers for Disease Control and 

Prevention, https://www.cdc.gov/media/releases/

2021/s1119-booster-shots.html (released Nov. 19, 

2021). See also COVID–19 Vaccine Booster Shots, 

Centers for Disease Control and Prevention, https:// 

www.cdc.gov/coronavirus/2019-ncov/vaccines/

booster-shot.html (updated Feb. 2, 2022). 

113See supra note 112 (citing data as of Mar. 30, 

2022). Additionally, 46.5% of fully vaccinated 

individuals 12 years of age and older in the United 

States have received a booster dose. 

114See supra note 75. 

115COVID–19 Vaccination for Children, Centers 

for Disease Control and Prevention, https://

www.cdc.gov/vaccines/covid-19/planning/

children.html (last reviewed Dec. 9, 2021). 

116See generally Murthy BP, Zell E, Saelee R, et 

al. COVID–19 Vaccination Coverage Among 

Adolescents Aged 12–17 Years—United States, 

December 14, 2020–July 31, 2021. MMWR Morb 

Mortal Wkly Rep 2021;70:1206–1213. DOI: http://

dx.doi.org/10.15585/mmwr.mm7035e1. 

117COVID–19 Vaccines Work, Centers for Disease 

Control and Prevention, https://www.cdc.gov/

coronavirus/2019-ncov/vaccines/effectiveness/ 

work.html (updated Dec. 23, 2021). See also supra 

note 111, attributing decline of vaccine 

effectiveness to waning vaccine induced immunity 

over time, possible increased immune evasion by 

SARS–CoV–2 variants, or a combination of these 

and other factors and finding that receiving a 

booster shot was highly effective at preventing 

COVID–19-associated emergency department and 

urgent care encounters and preventing COVID–19- 

associated hospitalizations). See also Stay Up to 

Date with Your Vaccines, Centers for Disease 

Control and Prevention, https://www.cdc.gov/

coronavirus/2019-ncov/vaccines/stay-up-todate.html (updated Mar. 30, 2022), a person is 

considered up to date after receiving all 

recommended COVID–19 vaccines, including any 

booster dose(s) when eligible. See also infra I.B.5. 

118This pattern applies to all age groups but is 

most pronounced among adults aged 65 years and 

older, who are at increased risk for hospitalization 

and death. 

119A recent CDC study found that among people 

hospitalized with COVID–19, severe outcomes 

during the Omicron wave appear lower than during 

previous high transmission waves. COVID Data 

Tracker Weekly Review: Boosters Work— 

Interpretive Summary for Feb. 11, 2022, Centers for 

Disease Control and Prevention, https://

www.cdc.gov/coronavirus/2019-ncov/covid-data/

covidview/past-reports/02112022.html. 

120Coronavirus disease (COVID–19): Vaccine 

access and allocation, World Health Organization, 

https://www.who.int/news-room/questions-andanswers/item/coronavirus-disease-(covid-19)-

vaccine-access-and-allocation (Aug. 6, 2021). 

121Coronavirus (COVID–19) Vaccinations, Our 

World in Data, https://ourworldindata.org/covidvaccinations#what-share-of-the-population-hasreceived-at-least-one-dose-of-the-covid-19-vaccine 

(updated Mar. 30, 2022). 

122 Id. 

123See supra note 21. 

124Treatments Your Healthcare Provider Might 

Recommend if You Are Sick, Centers for Disease 

Control and Prevention, https://www.cdc.gov/

coronavirus/2019-ncov/your-health/treatments-forsevere-illness.html (updated Jan. 13, 2022), noting 

monoclonal antibody treatments may help the 

immune system recognize and respond more 

effectively to the virus. 

125 FDA News Release: Coronavirus (COVID–19) 

Update: FDA Authorizes New Monoclonal Antibody 

for Treatment of COVID–19 that Retains Activity 

Against Omicron Variant, U.S. Food and Drug 

Administration, https://www.fda.gov/news-events/

press-announcements/coronavirus-covid-19-

update-fda-authorizes-new-monoclonal-antibodytreatment-covid-19-retains (Feb. 11, 2022). 

126See supra note 124. 

127See supra note 21. The availability of new oral 

antiviral medications makes treatment more 

accessible to patients who are at risk for progression 

to severe COVID–19, see FDA News Release: 

Coronavirus (COVID–19) Update: FDA Authorizes 

First Oral Antiviral for Treatment of COVID–19, 

U.S. Food and Drug Administration, https://

www.fda.gov/news-events/press-announcements/

coronavirus-covid-19-update-fda-authorizes-firstoral-antiviral-treatment-covid-19 (Dec. 22, 2022). 

128 Id. Antiviral pills will also be added to the 

stockpile for the first time. 

129See supra note 44, explaining preventing 

coronavirus disease 2019 (COVID–19) in 

correctional and detention facilities can be 

challenging because of population-dense housing, 

varied access to hygiene facilities and supplies, and 

limited space for isolation and quarantine. 

130See supra note 108. 

adults ages 18 years and older.112 As of 

March 30, 2022, 48.3% of fully 

vaccinated individuals 18 years and 

older in the United States have also 

received a booster dose.113

Since the August Order, eligibility for 

COVID–19 vaccines has expanded to 

include children ages five to 11.114

Children ages six months through four 

years may soon become eligible for a 

COVID–19 vaccine; CDC is working 

with state and local jurisdictions for the 

eventual rollout of this critical 

product.115 Improving COVID–19 

vaccination coverage among children 

and adolescents is crucial to 

maintaining low rates of COVID–19- 

associated morbidity and mortality 

among these groups and ensuring a safe 

and expedited return to normal routines 

for everyone.116

Vaccines, including boosters, 

continue to be the single most important 

public health tool for fighting COVID– 

19 and CDC recommends that all people 

get vaccinated as soon as they are 

eligible and stay up to date on 

vaccinations.117 Evidence shows that 

people who have completed the primary 

COVID–19 vaccination series, and 

received a booster when eligible, are at 

substantially reduced risk of severe 

illness and death from COVID–19; in 

contrast, the cumulative rate of COVID– 

19-associated hospitalizations is

substantially higher in unvaccinated

adults than in those who are up to date

on COVID–19 vaccines.118 Therefore,

vaccines, including booster doses when

appropriate, provide a substantial

measure of protection against COVID–

19-associated hospitalization and severe

disease, including from the Omicron

variant.119 The increased percentage of

individuals who are not only vaccinated

but have also received a booster—which

was not available at the time of the

August Order—strengthens community

protection levels and is a critical step

toward resuming normal routines safely.

The availability of COVID–19 

vaccines globally has also increased 

dramatically since the August Order.120

On August 2, 2021, only 29% of the 

world had received at least one dose of 

a COVID–19 vaccine, with 12% being 

fully vaccinated.121 As of March 30, 

2022, 64.9% of the world population 

has received at least one dose of a 

COVID–19 vaccine and 57% of the 

global population is fully vaccinated 

with a primary vaccine series.122

Fighting COVID–19 abroad is key to the 

nation’s effort to protect people at home 

and stay ahead of new variants; 

therefore, the United States remains 

committed to accelerating global 

vaccination efforts.123

c. Treatments

Compared to August 2021, treatments

for COVID–19 are more widely 

available. Although monoclonal 

antibodies were available in August 

2021 and some continue to be effective 

and were widely used during the 

Omicron wave, such treatments must be 

administered by infusion and are 

cumbersome to administer. The FDA 

has issued emergency use 

authorizations (EUA) for a number of 

treatments for COVID–19 for people at 

high risk of COVID–19 disease 

progression, some of which were 

developed after August 2021.124 In 

February 2022, FDA issued an EUA for 

a new monoclonal antibody that is 

specifically effective in combatting the 

Omicron variant.125 FDA has also 

authorized oral antiviral medications 

that target the SARS–CoV–2 virus.126

The U.S. government has expedited the 

development, manufacturing, and 

procurement of these treatments, 

securing 20 million courses of antiviral 

pills, which have been shown to reduce 

the risk of hospitalization or death by 

89%.127 The availability of efficacious 

and accessible treatments add a 

powerful layer of protection against 

severe COVID–19 that was not available 

in the summer of 2021.128 The U.S. 

government’s commitment to making 

such medications available and the 

ability to produce variant-specific 

treatments are critical components of 

the next phase of the fight against 

COVID–19. 

4. Congregate Settings

As highlighted in the August Order,

the very nature of congregate settings 

increases the risk for COVID–19 

outbreaks.129 Now, however, numerous 

non-pharmaceutical and pharmaceutical 

interventions are available to decrease 

the spread and severity of COVID–19 in 

these settings.130 Throughout the 


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131 Id. CDC recommends facilities should 

maintain, at all times, the following aspects of 

standard infection control, monitoring, and capacity 

to respond to cases of COVID–19: (1) Provide 

COVID–19 vaccination, including boosters; (2) 

maintain standard infection control; (3) maintain 

SARS–CoV–2 testing strategies; (4) prevent COVID– 

19 introduction from the community; and (5) 

prepare for outbreaks. 

132Some congregate settings and detention 

facilities are resuming activities such as interfacility transfers and detention of individuals for 

non-violent offenses, which has previously been 

paused due to the pandemic. 

133 Id. (Recommending that facilities develop and 

use metrics to guide modification of COVID–19 

prevention measures using data on local trends and 

facility characteristics). 

134Per information provided by DHS. 

135These mitigation efforts include installing 

plexiglass dividers in facilities, enhancing 

ventilation systems, adhering to CDC guidance of 

cleaning and disinfection, and providing masks to 

migrants, as well as 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. 30, 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 toolkit based on the latest relevant public 

health guidance. 

136As noted above, CDC reviews the public 

health rationale underlying the need for the Order 

every 60 days. 

137See 85 FR 56424, 56440–42 (noting that, 

despite passing the precursor to 42 U.S.C. 265 

during a cholera epidemic in 1893, the U.S. 

government did not exercise this authority until 

1929). 

pandemic, congregate settings have 

adapted processes to mitigate COVID–19 

risk, including incorporating mask use, 

improving ventilation, enhancing 

cleaning and disinfection procedures, 

and connecting people to medical care. 

Current CDC guidance for correctional 

and detention facilities recommends 

that certain key mitigation measures, 

including provision of vaccinations and 

use of standard infection controls 

remain in place at all times.131 In 

addition, facilities are encouraged to 

identify their own risk levels and apply 

additional mitigation measures as 

necessitated by local conditions.132

Rather than requiring physical 

distancing to be kept in place at all 

times, CDC’s congregate settings 

guidance allows such measures to be 

scaled up or down based on local data 

trends and facility characteristics.133

Because case counts and 

hospitalizations are decreasing in most 

areas of the country, many correctional 

and detention facilities are resuming 

certain activities that had previously 

been paused to facilitate physical 

distancing, signaling the resumption of 

more normal operations for many 

congregate settings.134

5. DHS Mitigation Measures 

It is CDC’s understanding that DHS 

facilities incorporate some of the 

recommended COVID–19 mitigation 

measures for congregate settings into 

their protocols. In particular, CBP 

continues to implement a variety of 

mitigation measures based on the 

infection prevention strategy referred to 

as the hierarchy of controls, which 

includes engineering upgrades, masking 

for migrants, and PPE for its 

workforce.135 Moreover, vaccine uptake 

among the CBP workforce has reached 

approximately 86% among personnel on 

the U.S.-Mexico border. 

Of particular note, DHS has recently 

begun implementing a vaccination 

program for migrants processed under 

Title 8 immigration authorities and held 

in CBP facilities. The DHS vaccination 

program will apply to all ageappropriate migrants who lack legal 

status and are processed pursuant to 

Title 8 authorities; have entered the 

United States after crossing the 

Southwest Border; and are taken into 

DHS custody. DHS has conveyed to CDC 

that all such migrants who are unable to 

provide proof of vaccination with an 

FDA EUA- or WHO EUL-approved 

vaccine will be provided an initial dose 

of a COVID–19 mRNA vaccine. DHS 

began implementing their vaccination 

program at 11 sites on March 28, 2022. 

DHS is working to expand this program 

over the next two months and states that 

their goal is to provide vaccinations to 

up to 6,000 migrants a day across 27 

sites across the Southwest Border by 

May 23, 2022. 

In addition, since the August Order, 

the DHS Office of the Chief Medical 

Officer has worked with partners in 

local communities to move individuals 

safely out of CBP custody and through 

the appropriate Title 8 immigration 

procedures, as applicable to the 

individual noncitizens. 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. 

II. Public Health Determination 

As the COVID–19 pandemic and 

public health landscape evolve, CDC 

reassesses the need for continued 

measures under 42 U.S.C. 265, 268 and 

42 CFR 71.40, the authorities that 

support the CDC Orders.136 This Public 

Health Determination and Termination 

is based upon the most recent science 

and data available to CDC. Based upon 

the data, CDC has determined that, 

although the implementation 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 strategy used over the past 

two years, less burdensome measures 

are now available to mitigate the 

introduction, transmission, and spread 

of COVID–19 resulting from the entry of 

covered noncitizens. 

This Public Health Determination and 

Termination is the most recent step in 

CDC’s continued efforts toward aligning 

the public health measures response to 

the COVID–19 pandemic with the best 

available science. Throughout the 

COVID–19 pandemic, CDC has taken a 

range of actions to help protect the 

public’s health. These actions have been 

informed by the status of the pandemic 

based on the scientific and 

epidemiological information available at 

the time. The actions fall along a 

spectrum of restrictions on movement 

and activities in public. Some, like the 

masking order for conveyances, impact 

individuals but do not restrict 

movement; others, like the No Sail 

Order, apply to entire industries. 

The CDC Orders issued under the 

authorities of 42 U.S.C. 265, 268 and 42 

CFR 71.40 suspending the right to 

introduce certain persons into the 

United States are among the most 

restrictive measures CDC has 

undertaken in the fight against COVID– 

19. The U.S. government has only used 

the extraordinary authority available 

under 42 U.S.C. 265 to restrict the 

introduction of persons in one instance 

prior to the COVID–19 pandemic—in 

1929, in response to a meningitis 

outbreak.137 During the earlier periods 

of the COVID–19 pandemic, while 

scientists were still learning about its 

epidemiology and developing 

therapeutics and vaccines, the CDC 

Orders were deemed necessary due to 

the rapid spread of the virus. As the 

understanding of the virus has grown 

and vaccines and therapeutics for the 

disease have become more widely 

available, lower COVID–19 Community 

Levels have been observed. 

The August Order recognized the full 

panoply of mitigation measures 

available as key to slowing the spread of 

the virus and protecting U.S. healthcare 

systems while widespread vaccination 

efforts continued. Like other COVID–19 

mitigation measures issued by CDC, the 

August Order was always intended as a 

temporary measure as understanding of 

the virus evolved. The scientific 

knowledge, availability of vaccines and 


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138CDC issued the original No Sail Order on 

March 14, 2020, and a version of the order 

remained in place until October 29, 2020, when it 

was replaced with a Framework for Conditional 

Sailing which permitted a phased resumption of 

cruise ship operations as long as certain public 

health mitigation measures were met. This 

Framework for Conditional Sailing became nonbinding for cruise ships in Florida by court order 

in July 2021 and was allowed to expire on January 

15, 2022. The Framework was replaced by a 

voluntary program, CDC’s COVID–19 Program for 

Cruise Ships, wherein cruise lines choosing to opt 

into the program are required to follow all 

recommendations and guidance as a condition of 

their participation in the program. See Technical 

Instructions for CDC’s COVID–19 Program for 

Cruise Ships Operating in U.S. Waters, Centers for 

Disease Control and Prevention, https://

www.cdc.gov/quarantine/cruise/management/

technical-instructions-for-cruiseships.html#program-for-cruise-ships (last updated 

Mar. 18, 2022); see also supra notes 38, 49, and 60. 

139See supra notes 35, 59, 66, 78, and 79. 

140See supra note 67. 

141CDC Orders, Centers for Disease Control and 

Prevention, https://www.cdc.gov/coronavirus/2019- 

ncov/cdcresponse/laws-regulations.html (updated 

Mar. 12, 2022). 

142Since the August Order, the collection, 

production, and analysis of key COVID–19 response 

metrics has continued to expand. Advances in 

public health surveillance may enable officials and 

facilities (including congregate setting facilities) to 

rapidly institute necessary mitigation measures in 

the event of an outbreak. For example, CDC 

launched and is continually enhancing the National 

Wastewater Surveillance System to track the 

presence of SARS–CoV–2 in wastewater samples 

collected across the country. See supra note 21. 

143CBP most recently reported vaccination rates 

between 75% and 91% among its U.S. Border Patrol 

and Office of Field Operations personnel. 

144Thus far in 2022, Mexico, Cuba, Guatemala, 

Honduras, and Nicaragua constitute the top five 

countries of origin for covered noncitizens. Rates of 

vaccination for each country are as follows: Cuba: 

88% fully vaccinated, 94% only partly vaccinated; 

Guatemala: 33% fully vaccinated, 9.8% only partly 

vaccinated; Honduras: 47% fully vaccinated, 6% 

only partly vaccinated; Mexico: 61% fully 

vaccinated, 4.5% only partly vaccinated; Nicaragua: 

61% fully vaccinated, 82% only partly vaccinated. 

Coronavirus (COVID–19) Vaccinations, Our World 

in Data, https://ourworldindata.org/covidvaccinations (last visited Mar. 31, 2022). 

145See supra I.B.5. CDC strongly supports broad 

vaccination at the Southwest Border in furtherance 

of public health, and will implement termination of 

the Order on May 23, 2022, in part to give DHS time 

to scale up its vaccination program. That said, given 

the current status of the pandemic and the range of 

mitigation measures currently in place and in the 

process of being implemented, CDC believes the 

serious risk to public health that the CDC Orders 

were intended to address has been sufficiently 

alleviated, even in the absence of complete 

implementation of the DHS vaccination program. 

146As demonstrated by the U.S. government’s 

experience with Operation Artemis and Operation 

Allies Welcome, a COVID–19 vaccination program 

helps protect noncitizens, as well as personnel 

serving these populations and American 

communities. Vaccination of all encountered 

noncitizens aligns with larger U.S. government 

pandemic efforts and safe travel policies. 

147 86 FR 42828, 42837. 

148 Id. 

149See supra note 21. 

therapeutics, and high percentage of the 

U.S. population living in a county 

identified as having ‘‘low’’ or ‘‘medium’’ 

COVID–19 Community Levels have 

permitted CDC to carefully step-down 

the various public health mitigation 

measures used. This step-down involves 

purposeful narrowing of some 

restrictions while terminating others 

when the public health need for and 

efficacy of the measures no longer 

outweigh the severity of the restriction. 

For example, CDC took the 

unprecedented step of halting cruise 

ship travel during the earliest phases of 

the pandemic, but permitted gradual 

resumption of cruises as the public 

health situation evolved.138 Likewise, 

the United States has transitioned from 

suspending the entry of persons 

traveling from specified countries 139 to 

a framework of CDC travel health 

notices and testing and proof of 

vaccination requirements 140 that allow 

for reopening global travel and 

migration while still implementing 

necessary mitigation measures. CDC 

believes that the restrictions remaining 

in place as part of the travel framework 

(e.g., proof of vaccination requirements 

for noncitizens entering the United 

States by air or land POE, and proof of 

a negative COVID–19 test result) 141

continue to be necessary and are 

appropriately balanced to minimize 

restrictions on individuals. CDC 

continually evaluates the need for these 

measures and is committed to tailoring 

them to meet the current public health 

needs. These careful step-downs have 

been driven by the evolution of the 

COVID–19 pandemic and scientific 

developments and are part of CDC’s 

commitment to exercise its authorities 

in a manner that provides the greatest 

benefit for public health while imposing 

the minimum necessary burden on 

individuals and communities. 

In the context of the CDC Orders 

issued under 42 U.S.C. 265, 268 and 42 

CFR 71.40, this public health-driven 

step-down first narrowed 

implementation to except UC and then 

fully terminated the Orders with respect 

to UC once there was no longer public 

health justification for such a 

suspension. While the CDC Orders 

under 42 U.S.C. 265, 268 and 42 CFR 

71.40 provided an important measure to 

protect against the introduction, 

transmission, and spread of COVID–19 

during earlier phases of the pandemic 

by reducing the number of noncitizens 

held in congregate settings, other public 

health measures are now available to 

provide necessary public health 

protection for noncitizens, Americans, 

and the DHS workforce.142 CDC 

acknowledges that public health 

concerns may arise in congregate 

settings, including COVID–19 

transmission. CDC has determined that, 

although there is still a risk of COVID– 

19 transmission in crowded congregate 

settings, including DHS facilities, that 

risk does not present a sufficiently 

serious danger to public health to 

necessitate maintaining the August 

Order. Furthermore, the mitigation 

measures available will help reduce 

severe outcomes and reduce the serious 

danger of introduction, transmission, 

and spread of COVID–19 into the United 

States by covered noncitizens. 

Both at home and abroad, vaccination 

rates are increasing. 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 Border 

Patrol stations demonstrates important 

progress toward the normalization of 

border operations.143 Since August 

2021, vaccination rates in the countries 

of origin for the current majority of 

incoming noncitizens have also 

increased dramatically.144 Such global 

increases in vaccination rates and 

infection-induced immunity provide 

additional layers of protection. As noted 

above, DHS is currently scaling up a 

program that provides vaccines to 

encountered noncitizens taken into CBP 

custody along the Southwest Border.145

CDC is supportive of these efforts as a 

public health measure as they align with 

CDC’s and the U.S. government’s 

emphasis on global vaccination to fight 

COVID–19. Even if full COVID–19 

vaccination cannot be assured, partial 

vaccination provides some level of 

protection against severe illness and 

hospitalization and helps maintain U.S. 

healthcare resources.146

The August Order also highlighted the 

threat posed by emerging variants and 

the potential for a future, vaccineresistant variant, either of which could 

negatively impact U.S. communities and 

local healthcare resources.147 Based in 

part on these threats, CDC concluded at 

that time that SA and FMU should 

continue to be subject to the August 

Order, pending further improvements in 

the public health situation, and subject 

to continual reassessment.148 Since the 

August Order was implemented, 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 updated the National 

COVID–19 Preparedness Plan for 

monitoring COVID–19 to swiftly adapt 

tools to combat a new variant and 

deploy emergency resources to help 

communities.149 The Plan includes 

steps to ensure that variant surveillance, 


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150 Id. 

151Per internal CDC calculations. 

152COVID–19 Integrated County View, Centers for 

Disease Control and Prevention, https://

covid.cdc.gov/covid-data-tracker/#county-view?list_

select_state=all_states&list_select_county=all_

counties&data-type=CommunityLevels (last 

updated Mar. 31, 2022), noting 100% (n=24) of 

counties along the U.S.-Mexico border are 

considered ‘‘Low’’: California (San Diego County, 

Imperial County); Arizona (Pima County, Santa 

Cruz County, Cochise County, Yuma County); New 

Mexico (Luna County, Dona Ana County, Otero 

County, Eddy County, Lea County); and Texas 

(Presidio County, Brewster County, Terrell County, 

Webb County, Zapata County, Cameron County, El 

Paso County, Hudspeth County, Val Verde County, 

Kinney County, Maverick County, Starr County, 

Hidalgo County). 

153See 86 FR 42828, 42834 and 42838. 

154See Dep’t of Homeland Sec. v. Regents of the 

Univ. of Cal., 140 S. Ct. 1891, 1913 (2020). 

155 42 U.S.C. 265. 

156 Id. 

157 Id. 

158 42 CFR 71.40(a). 

159 85 FR at 17061 (emphasis added). 

160 85 FR at 17068. 

161 85 FR at 65807, 65812. 

162See P.J.E.S. v. Wolf, 502 F. Supp. 3d 492 

(D.D.C. 2020). 

163Order, P.J.E.S. v. Mayorkas, et al., No. 20–5357 

(D.C. Cir. Jan. 29, 2021), Doc. No. 1882899. 

164See Huisha-Huisha v. Mayorkas, No. CV 21– 

100 (EGS), 2021 WL 4206688, at *12 (D.D.C. Sept. 

16, 2021). 

vaccines, tests, and treatments can be 

updated and deployed quickly.150

At this point in the pandemic, the 

United States has high rates of vaccine 

and infection-induced immunity in the 

population, as well as availability of 

effective therapeutics, testing, and wellfitting masks. These tools, which have 

been developed and distributed over the 

past two years, help minimize medically 

significant disease and prevent 

excessive strain on the healthcare sector 

even while SARS–CoV–2 virus 

continues to circulate. As noted above, 

97.1% of the U.S. population is 

currently living in an area classified as 

having a ‘‘low’’ COVID–19 Community 

Levels, meaning most of the population 

can operate under more relaxed COVID– 

19 mitigation strategies.151 Noteworthy 

for purposes of this Determination, as of 

March 31, 2022, all 24 U.S. counties 

along the U.S.-Mexico border are 

classified as having a ‘‘low’’ COVID–19 

Community Level.152 Like prior CDC 

Orders, the August Order, issued during 

the fourth wave of the pandemic, noted 

the goal of slowing the introduction, 

transmission, and spread of SARS–CoV– 

2 into the United States by covered 

noncitizens.153 With the ebb of the 

Omicron surge across the United States, 

however, the public health findings 

underlying the August Order have 

changed. Although COVID–19 remains a 

concern, the readily available and less 

burdensome public health mitigation 

tools to combat the disease render an 

order under 42 U.S.C. 265 to prevent a 

serious danger to the public health 

unnecessary. At this point in the 

pandemic, the previously identified 

public health risk is no longer 

commensurate with the extraordinary 

measures instituted by the CDC Orders. 

As the pandemic evolves, CDC will 

continue to monitor the situation with 

respect to COVID–19 at U.S. borders and 

will continue to consult with DHS on 

combatting COVID–19 in DHS facilities 

following the Termination of the August 

Order. 

III. Legal Considerations 

A. Temporary Nature of Orders Under 

42 U.S.C. 265 and Absence of Reliance 

Interests 

In issuing this Public Health 

Determination and Termination, CDC 

has considered whether state or local 

governments, or their subdivisions, have 

any ‘‘legitimate reliance’’ 154 interests in 

the continued expulsion of covered 

noncitizens pursuant to 42 U.S.C. 265 

(Section 265). CDC has determined that 

no state or local government could be 

said to have legitimately relied on the 

CDC Orders issued under 42 U.S.C. 265, 

268 and 42 CFR 71.40 to implement 

long-term or permanent changes to its 

operations because those orders are, by 

their very nature, short-term orders, 

authorized only when specified 

statutory criteria are met, and subject to 

change at any time in response to an 

evolving public health crisis. Section 

265 may be invoked only if CDC 

determines that 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 [where 

the communicable disease exists] that a 

suspension of the right to introduce 

such persons and property is required in 

the interest of the public health.’’ 155

Moreover, the statute may be invoked 

only ‘‘for such period of time as [CDC] 

may deem necessary’’ to avert such a 

danger.156 As HHS’s implementing 

regulation further recognizes, in 

prohibiting the introduction of covered 

persons ‘‘in whole or in part,’’ 157 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.’’ 158

For these reasons, the CDC Orders 

have consistently been subject to 

periodic reviews to ensure their 

continued necessity. CDC’s initial order 

issued in March 2020 made clear that 

the Order represented a ‘‘temporary 

suspension of the introduction of 

[covered] persons into the United 

States’’ 159 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.’’ 160 The March 

2020 Order was subsequently extended 

on April 20, 2020, and then amended on 

May 19, 2020. The fact that the policy 

was frequently reviewed should have 

underscored that CDC’s use of its 

authority under 42 U.S.C. 265 was a 

temporary measure subject to change at 

any time. The October 2020 Order again 

confirmed this understanding of CDC’s 

authority, noting the ‘‘temporary’’ 

nature of the suspension of the 

introduction of covered persons, as well 

as the facts 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,’’ and that CDC 

‘‘retain[ed] the authority to extend, 

modify, or terminate the Order, or 

implementation of [the] Order, at any 

time as needed to protect public 

health.’’ 161

In addition, CDC’s ability to exercise 

its authority under Section 265 as to 

certain groups has fluctuated due to 

litigation, further rendering it 

unreasonable for any state or local 

government to have acted in reliance on 

the continued exercise of the authority. 

CDC’s exercise of the Section 265 

authority was first challenged shortly 

after CDC issued its initial order in 

March 2020, and subsequent court 

orders enjoining CDC from exercising its 

authority under 42 U.S.C. 265 as to 

certain groups of covered noncitizens 

should have further discouraged 

reliance on temporary CDC orders. For 

example, in November 2020, the United 

States District Court for the District of 

Columbia enjoined the expulsion of UC 

on the basis that Section 265 likely did 

not authorize such expulsions.162

Although the government obtained a 

stay of the injunction in January 

2021,163 the extent of the government’s 

authority under Section 265 remained 

contested. In addition, in September 

2021, the United States District Court 

for the District of Columbia similarly 

enjoined the expulsion of FMU, again 

on the basis that Section 265 likely did 

not authorize such expulsions.164 The 

U.S. Court of Appeals for the D.C. 

Circuit recently upheld the 

government’s authority under 42 U.S.C. 

265 to expel FMU, but the court held 


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165 Id. at *1. The D.C. Circuit also noted the 

‘‘considerable difference’’ in public health 

situations between March 2020 and March 2022. Id. 

at *13. 

166 86 FR 42828, 42831; see also id. at 42837 

(discussing a necessary mitigation measure ‘‘as DHS 

moves towards the resumption of normal border 

operations’’); id. at 42838 (‘‘CDC believes that the 

gradual resumption of normal border operations 

under Title 8 is feasible. With careful planning, this 

may be initiated in a stepwise manner that complies 

with COVID–19 mitigation protocols.’’); id. at 42840 

(noting that ‘‘although this Order will continue with 

respect to SA and FMU, DHS will use case-by-case 

exceptions based on the totality of the 

circumstances where appropriate to except 

individual SA and FMU in a manner that gradually 

recommences normal migration operations as 

COVID–19 health and safety protocols and capacity 

allows’’); id. (CDC considered ‘‘the use of case-bycase exceptions as a step towards the resumption 

of normal border operations under Title 8’’). 

167See supra I.B.2. 

168See Regents, 140 S. Ct. at 1913 (explaining that 

features evidencing the temporary and non-rightsconferring nature of a government program ‘‘surely 

are pertinent in considering the strength of any 

reliance interests,’’ and can be considered by the 

agency). 

169See supra notes 1 and 4. 

170See supra note 7. 

171 42 U.S.C. 265; 42 CFR 71.40. 

172 85 FR 56424, 56425–26. The Director may 

suspend the introduction of persons not only to 

prevent the introduction of a quarantinable 

communicable disease, but also to aid in continued 

efforts to mitigate spread of that disease. 

that such expulsions cannot be to places 

where the noncitizen are likely to be 

persecuted or tortured.165 Although the 

decision will not take effect until the 

mandate issues in late April 2022, the 

decision should have put any state or 

local government on notice that there 

might be significant practical 

constraints on the government’s ability 

to expel covered FMU quickly. 

Moreover, by August 2021, state and 

local governments were on notice that 

the federal government would be taking 

steps towards the resumption of normal 

border operations. In the August 2021 

Order, CDC stated that it ‘‘view[ed] this 

public health reassessment as setting 

forth a roadmap toward the safe 

resumption of normal processing of 

arriving noncitizens, taking into account 

COVID–19 concerns and immigration 

facilities’ ability to implement 

mitigation measures.’’ 166 Accordingly, 

state and local governments could not 

have reasonably relied on CDC’s 

indefinite use of its expulsion authority 

under Section 265. As a factual matter, 

CDC is not aware of any reasonable or 

legitimate reliance on the continued 

expulsion of covered noncitizens under 

42 U.S.C. 265 beyond potentially local 

healthcare systems’ allocation of 

resources, which CDC has considered in 

this Order.167

Even if a state or local government 

had relied on the continued existence of 

a CDC order under this authority, 42 

U.S.C. 265 only authorizes CDC to 

prevent the introduction of noncitizens 

when it is required in the interest of 

public health. No state or local 

government could reasonably rely on 

CDC’s continued application of Section 

265 once CDC determined that there is 

no longer sufficient public health risk 

present with respect to the introduction 

of covered noncitizens. Therefore, 

CDC’s considered judgment is that any 

reliance interest that might be said to 

exist in connection with the continued 

suspension of the right to introduce 

covered noncitizens under 42 U.S.C. 

265 is not weighty enough to displace 

CDC’s determination that there is no 

public health justification for such a 

suspension at this time.168 To the extent 

that any state or local government did 

rely on the expulsion of noncitizens 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 the 

suspension of the right to introduce 

covered noncitizens is not required to 

avert a serious danger to public health. 

CDC has also considered whether 

there may be any short-term reliance on 

the continued expulsion of noncitizens 

under the August 2021 Order. CDC 

concludes that any short-term reliance 

interests should be limited for all the 

reasons explained above, and 

particularly in light of the expressly 

temporary nature of the Order. For the 

same reasons, CDC concludes that any 

such reliance does not outweigh CDC’s 

determination that the expulsion of 

covered noncitizens is not required to 

avert a serious danger to public health. 

Moreover, to the extent that any state or 

local government has made any shortterm plans based on the existence of the 

August Order, the effective date of this 

Termination has been set for 52 days 

from the date of issuance, thus 

providing state and local governments 

time to adjust to the resumption of 

regular Title 8 immigration processing. 

Finally, the CDC Orders issued 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 need. Thus, to the extent 

that state and local governments along 

the border or elsewhere 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. And even if such reliance 

were reasonable or legitimate, that 

reliance would not outweigh CDC’s 

conclusion that expulsions are not 

necessary under the terms of 42 U.S.C. 

265 or warrant disruption of ordinary 

processing of covered noncitizens. 

B. Basis for Termination Under 42 

U.S.C. 265, 268 and 42 CFR 71.40 

CDC is hereby terminating the August 

Order 169 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 

71.40.170 This Termination will be 

implemented on May 23, 2022, for the 

operational reasons outlined herein, 

including to give DHS time to 

implement additional COVID–19 

mitigation measures. The statutory and 

regulatory authorities permit the CDC 

Director to issue Orders prohibiting, in 

whole or in part, the introduction into 

the United States of persons from 

designated foreign countries (or one or 

more political subdivisions or regions 

thereof) or places, only for such period 

of time that the Director deems 

necessary to avert the serious danger of 

the introduction of a quarantinable 

communicable disease, based on a 

determination by the Director that: 

(1) By reason of the existence of any 

quarantinable communicable disease in 

a foreign country (or one or more 

political subdivisions or regions thereof) 

or place there is serious danger of the 

introduction of such quarantinable 

communicable disease into the United 

States; and 

(2) This danger is so increased by the 

introduction of persons from such 

country (or one or more political 

subdivisions or regions thereof) or place 

that a suspension of the right to 

introduce such persons into the United 

States is required in the interest of 

public health.171

Pursuant to 42 U.S.C. 265 and the 

implementing regulation, the CDC 

Director has the authority to issue 

orders to mitigate the introduction and 

further spread of COVID–19 disease.172

In recognition of the extraordinary 

nature of these emergency public health 

powers, section 265 and its 

implementing regulation contemplate 

that the exercise of these authorities will 

be temporally and geographically 

limited in scope as described below. 

Critically, these authorities also require 

that any orders issued will be 

terminated when they are no longer 

necessary to protect the public health. 

The authority to make this 

determination has been delegated to the 

CDC Director. 


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173 Id. at 56444. 

174 Id. at 56431; 56434. 

175 42 U.S.C. 265; 42 CFR 71.40. 

176 42 CFR 71.40. 

177Control 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). 

178See supra note 105, indicating that the whole 

community can be safe only when [everyone] 

take[s] steps to protect each other, even when the 

COVID–19 Community Level is low or medium. 

179 Id. 

180 42 CFR 71.40. 

CDC explained in the preamble to the 

Final Rule for 42 CFR 71.40 that, in 

issuing an Order under these 

authorities, it may ‘‘consider a wide 

array of facts and circumstances when 

determining what is required in the 

interest of public health in a particular 

situation . . . includ[ing]: the overall 

number of cases of disease; any large 

increase in the number of cases over a 

short period of time; the geographic 

distribution of cases; any sustained 

(generational) transmission; the method 

of disease transmission; morbidity and 

mortality associated with the disease; 

the effectiveness of contact tracing; the 

adequacy of state and local healthcare 

systems; and the effectiveness of state 

and local public health systems and 

control measures.’’ 173 Other factors 

noted in the Final Rule are the potential 

for disease spread among persons held 

in congregate settings, the potential for 

disease spread to the community at 

large, and strain on healthcare 

systems.174

CDC is committed to 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.175 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.176

CDC has considered these and other 

relevant factors in the foregoing 

determination, including the overall 

shift in the U.S. government response to 

the pandemic, and 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 due to the entry of covered 

noncitizens. Although COVID–19 

continues to spread within the United 

States, as a result of the numerous tools 

for disease prevention, mitigation, and 

treatment which have become available 

over the past two years, and the other 

considerations explained above, an 

order suspending the right to introduce 

covered noncitizens under 42 U.S.C. 

265 is no longer required in the interest 

of public health. 

IV. Issuance and Implementation 

Based on the foregoing Public Health 

Determination, I hereby Terminate 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 regulations under 42 

CFR 71.40.177 This Termination will be 

implemented on May 23, 2022. 

Following an assessment of the 

current epidemiologic status of the 

COVID–19 pandemic and the U.S. 

government’s ongoing response efforts, I 

find there is no longer a public health 

justification for the August Order and 

previous Orders issued under these 

authorities; employing such a broad 

restriction to preserve the health and 

safety of U.S. citizens, U.S. nationals, 

and lawful permanent residents, and 

personnel and noncitizens in POE and 

U.S. Border Patrol stations is no longer 

necessary to protect the public health. 

Other current public health mitigation 

measures sufficiently reduce the serious 

danger of introduction, transmission, 

and spread of the virus that causes 

COVID–19 as a result of the entry of 

covered noncitizens, including in 

congregate settings where such 

noncitizens would otherwise be held 

while undergoing immigration 

processing, including at POE and U.S. 

Border Patrol stations at or near the U.S. 

land and adjacent coastal borders. 

Termination of the August Order is 

based on the current status of the 

COVID–19 pandemic and the available 

public health mitigation measures. In 

making this determination, I have 

considered myriad facts, including 

epidemiological information such as the 

viral transmissibility and asymptomatic 

transmission of COVID–19, the 

epidemiology and spread of SARS– 

CoV–2 variants, the morbidity and 

mortality associated with the disease for 

individuals in certain risk categories, 

COVID–19 Community Levels, national 

levels of transmission and immunity, 

the availability and efficacy of 

vaccination and treatments, as well as 

public health concerns with congregate 

settings at border facilities. While 

holding noncitizens in congregate 

settings with limited options for 

COVID–19 mitigation is accompanied 

by 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. 

The COVID–19 pandemic is ongoing 

and appropriate public health 

mitigation measures must continue to be 

applied.178 Although it cannot be 

known how the spread of SARS–CoV– 

2 will change in the future (e.g., due to 

the emergence of a new variant), CDC 

plans to rely on COVID–19 Community 

Levels, among other factors, to inform 

how prevention measures may be used 

to minimize the impact of COVID–19 on 

health and society, including at the U.S. 

borders.179 To that end, CDC will 

continue to assess the public health 

situation at the U.S. borders even after 

this Termination as part of its 

comprehensive COVID–19 response. If, 

for example, there is a substantial 

change in the public health situation 

with respect to the pandemic, such as 

due to new and particularly concerning 

SARS–CoV–2 variants, CDC could 

determine a new order under 42 U.S.C. 

265, 268 and 42 CFR 71.40 is necessary. 

Any such determination would be based 

on the public health needs identified at 

that time. 

A. Implementation of This Termination 

CDC is required by the Final Rule to 

consult with ‘‘all Federal departments 

or agencies whose interests would be 

impacted by this order,’’ ‘‘as practicable 

under the circumstances.180 CDC 

recognizes that resumption of border 

operations under Title 8 authorities, and 

the need to put additional appropriate 

COVID–19 mitigation measures in place, 

requires time to operationalize in a 

manner that protects the health and 

safety of the migrants, workforce, and 

American communities. Based on DHS’ 

recommendation and in order to 

provide DHS time to implement 

operational plans for fully resuming 

Title 8 processing, including 

incorporating appropriate COVID–19 

measures, this Termination will be 

implemented on May 23, 2022. 

DHS has represented that over the 

next several weeks it is taking important 

steps to implement processes in 

preparation for the full resumption of 

border operations pursuant to Title 8 

authorities, in a manner that promotes 

the health and safety of migrants, CBP 

employees, and the local communities. 

Most recently, DHS has initiated a 

vaccination program for all age-eligible 

migrants who lack legal status and are 

processed pursuant to Title 8 


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181See supra I.B.5. 

182 In line with CDC’s emphasis on the 

importance of vaccination, CDC has kept its 

requirement for noncitizens to provide proof of 

vaccination for air travel and also supports DHS’s 

Order requiring the same at the land borders (see 

supra notes 67 and 83). 

183 ‘‘Persons whom customs officers determine, 

with approval from a supervisor, should be 

excepted from this Order based on the totality of the 

circumstances, including consideration of 

significant law enforcement, officer and public 

safety, humanitarian, and public health interests. 

DHS will consult with CDC regarding the standards 

for such exceptions to help ensure consistency with 

current CDC guidance and public health 

recommendations.’’ 86 FR 42828, 42841 (Aug. 5, 

2021). 

184 42 U.S.C. 268; 42 CFR 71.40(d). 

185While this Termination is not a rule subject to 

notice and comment under the APA (5 U.S.C. 553), 

the Office of Information and Regulatory Affairs has 

determined that this is a major rule as defined by 

Subtitle E of the Small Business Regulatory 

Enforcement Fairness Act of 1996, also known as 

the Congressional Review Act (CRA). 5 U.S.C. 

804(2). The agency finds, for the reasons listed 

above, that good cause exists to make this rule 

effective on May 23, 2022, under 5 U.S.C. 808(2). 

186 5 U.S.C. 553(b)(3)(B). 

187 5 U.S.C. 553(a)(1). 188 5 U.S.C. 553(a)(1). 

authorities; this program will be scaled 

up over the next two months.181 As 

stated above, CDC recognizes 

vaccination as the single most important 

public health tool for fighting COVID– 

19 and recommends that all eligible 

persons, regardless of citizenship, be 

vaccinated and remain up to date with 

boosters.182 The implementation 

timeline of this Termination will 

provide DHS with time to scale its 

vaccination program, as well as ready its 

operational capacity, implement 

appropriate COVID–19 protocols, and 

prepare for resumption of regular 

migration under Title 8. 

CDC recognizes that the Termination 

of the August Order will lead to an 

increase in the number of noncitizens 

being processed in DHS facilities which 

could result in overcrowding in 

congregate settings. Moreover, DHS 

projects, based on available intelligence 

as well as seasonal migration patterns, 

an increase in encounters in the coming 

months, which could lead to further 

crowding in DHS facilities. DHS reports 

that it is taking steps to plan for such 

increases, including by readying 

decompression plans, deploying 

additional personnel and resources to 

support U.S. Border Patrol, and 

enhancing its ability to safely hold 

noncitizens it encounters. Putting such 

plans in place, ensuring that the 

workforce is adequately and appropriate 

trained for their shifting roles, and 

deploying critical resources require 

time. This Termination will be 

implemented on May 23, 2022, to 

provide DHS with additional time to 

ready such operational plans and 

prepare for full resumption of regular 

migration under Title 8. 

For the foregoing reasons, this 

Termination will be implemented on 

May 23, 2022. To the extent that any 

state or local government has a 

misplaced reliance interest on the 

August Order, the timeline for 

implementation of the Termination also 

allows time for such entities to adjust 

their planning in anticipation of the full 

resumption of Title 8 border processing. 

During this temporary period of 

continued application of the August 

Order, DHS will continue to exercise its 

discretion to issue case-by-case 

exceptions based on the totality of the 

circumstances as set forth in the August 

Order.183 DHS has represented that it 

will continue to make use of this 

exception where, for example, a 

noncitizen may suffer particular harms 

associated with expulsion (e.g., 

vulnerable and medically fragile 

persons) until the Termination is 

effective. 

B. APA Review 

This Termination shall be 

implemented on May 23, 2022. I 

consulted with DHS and other federal 

departments as required by the Final 

Rule before I issued this Order and 

requested that DHS aid in the 

implementation of this Termination.184

DHS is developing operational plans for 

implementing this Termination. CDC 

will review these plans and ensure that 

they are consistent with the language of 

this Termination and public health best 

practices. 

This Termination, like the preceding 

Orders issued under this authority, is 

not a rule subject to notice and 

comment under the Administrative 

Procedure Act (APA).185 Even if it were, 

notice and comment are not required 

because there is good cause to dispense 

with prior public notice and the 

opportunity to comment on this 

Termination.186 Given the extraordinary 

nature of an order under Section 265, 

the resultant restrictions on application 

for asylum and other immigration 

processes under Title 8, and the 

statutory and regulatory requirement 

that an CDC order under the authority 

last no longer than necessary to protect 

public health, it would be impracticable 

and contrary to the public interest and 

immigration laws that apply in the 

absence of an order under 42 U.S.C. 265 

to delay the effective date of this 

termination beyond May 23, 2022 for 

the reasons outlined herein.187 As 

explained, DHS requires time to 

institute operational plans to implement 

this order, including COVID–19 

mitigation measures, and begin regular 

immigration processing pursuant to 

Title 8. In light of the August Order’s 

significant disruption of ordinary 

immigration processing and DHS’s need 

for time to implement an orderly and 

safe termination of the order, there is 

good cause not to delay issuing this 

termination or to delay the termination 

of this order past May 23, 2022. In 

addition, this Order concerns ongoing 

discussions with Canada, Mexico, and 

other countries regarding immigration 

and how best to control COVID–19 

transmission over shared borders and 

therefore directly ‘‘involve[s] . . . a . . . 

foreign affairs function of the United 

States;’’ 188 thus, notice and comment 

are not required. 

With this Termination, I hereby 

determine that the danger of further 

introduction, transmission, or spread of 

COVID–19 into the United States from 

covered noncitizens, 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, 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. 2022–07306 Filed 4–4–22; 11:15 am] 

BILLING CODE 4163–18–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Disease Control and 

Prevention 

Advisory Board on Radiation and 

Worker Health (ABRWH); Notice of 

Charter Renewal 

AGENCY: Centers for Disease Control and 

Prevention (CDC), Department of Health 

and Human Services (HHS). 

ACTION: Notice of charter renewal. 

SUMMARY: This gives notice under the 

Federal Advisory Committee Act of 

October 6, 1972, that the Advisory 

Board on Radiation and Worker Health 

(ABRWH), Centers for Disease Control 

and Prevention, Department of Health 

and Human Services, has been renewed 


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