[Federal Register Volume 87, Number 66 (Wednesday, April 6, 2022)]
[Notices]
[Pages 19941-19956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07306]


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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.

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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: <a href="/cdn-cgi/l/email-protection#593d3e3428293635303a20363f3f303a3c193a3d3a773e362f"><span class="__cf_email__" data-cfemail="9df9faf0ecedf2f1f4fee4f2fbfbf4fef8ddfef9feb3faf2eb">[email protected]</span></a>.

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.''

[[Page 19942]]

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 cross-border 
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-Prohibiting-Introduction-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.
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    \1\ Available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/CDC-Order-Suspending-Right-to-Introduce-_Final_8-2-21.pdf 
(last visited Mar. 7, 2022); see also 86 FR 42828 (Aug. 5, 2021).
    \2\ ``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).
    \3\ See infra I.
    \4\ The 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/NoticeUnaccompaniedChildren.pdf (July 16, 2021); 86 FR 38717 (July 
22, 2021); see 86 FR 42828, 42829 at note 1 (Aug. 5, 2021) (which 
fully incorporated by reference the July Exception relating to UC). 
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.
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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

[[Page 19943]]

    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\
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    \5\ Quarantinable 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).
    \6\ See supra note 1.
    \7\ Order Suspending the Right to Introduce Certain Persons from 
Countries Where a Quarantinable Communicable Disease Exists, 85 FR 
65806 (Oct. 16, 2020). The October Order replaced the Order 
Suspending Introduction of Certain Persons from Countries Where a 
Communicable Disease Exists, issued on March 20, 2020 (March Order), 
which was subsequently extended and amended. Notice of Order Under 
Sections 362 and 365 of the Public Health Service Act Suspending 
Introduction of Certain Persons from Countries Where a Communicable 
Disease Exists, 85 FR 17060 (Mar. 26, 2020); Extension of Order 
Under Sections 362 and 365 of the Public Health Service Act; Order 
Suspending Introduction of Certain Persons From Countries Where a 
Communicable Disease Exists, 85 FR 22424 (Apr. 22, 2020); Amendment 
and Extension of Order Under Sections 362 and 365 of the Public 
Health Service Act; Order Suspending Introduction of Certain Persons 
from Countries Where a Communicable Disease Exists, 85 FR 31503 (May 
26, 2020).
    \8\ Suspension of the right to introduce means to cause the 
temporary cessation of the effect of any law, rule, decree, or order 
pursuant to which a person might otherwise have the right to be 
introduced or seek introduction into the United States. 42 CFR 
71.40(b)(5).
    \9\ See supra note 2.
    \10\ POE and U.S. Border Patrol stations are operated by U.S. 
Customs and Border Protection (CBP), an agency within Department of 
Homeland Security (DHS).
    \11\ 86 FR 42828, 42841.
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    Three groups typically make up covered noncitizens--single adults 
(SA),\12\ individuals in family units (FMU),\13\ and unaccompanied 
noncitizen children (UC).\14\ UC 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 UC \17\ 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\
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    \12\ A single adult (SA) is any noncitizen adult 18 years or 
older who is not an individual in a ``family unit.'' 86 FR 42828, 
42830 at note 13.
    \13\ An individual in a family unit (FMU) includes any 
individual in a group of two or more noncitizens consisting of a 
minor or minors accompanied by their adult parent(s) or legal 
guardian(s). Id. at note 14.
    \14\ CDC understands UC to be a class of individuals similar to 
or the same as those individuals who would be considered 
``unaccompanied alien children'' (see 6 U.S.C. 279) for purposes of 
HHS Office of Refugee Resettlement custody, were DHS to make the 
necessary immigration determinations under Title 8 of the U.S. Code. 
86 FR 38717, 38718 at note 4.
    \15\ 86 FR 42828, 42829 at note 3.
    \16\ See supra note 4.
    \17\ While 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).
    \18\ Texas v. Biden, No. 4:21-cv-0579-P, 2022 WL 658579, at *16-
18 (N.D. Tex. Mar. 4, 2022).
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    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

[[Page 19944]]

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\
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    \19\ 86 FR 42828, 42841.
    \20\ COVID-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.
    \21\ National COVID-19 Preparedness Plan--March 2022, available 
at https://www.whitehouse.gov/wp-content/uploads/2022/03/NAT-COVID-19-PREPAREDNESS-PLAN.pdf (last visited Mar. 30, 2022).
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    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 cross-
border 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\
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    \22\ Coronavirus disease (COVID-19) pandemic, World Health 
Organization, https://covid19.who.int/ (last visited Mar. 30, 2022).
    \23\ COVID Data Tracker, Centers for Disease Control and 
Prevention, https://covid.cdc.gov/covid-data-tracker/#datatracker-home (last visited Mar. 30, 2022).
    \24\ See 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-data-tracker/#trends_dailycases, noting a seven-day moving average of 26,190 
cases on March 28, 2022.
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    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.
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    \25\ Supra note 21.
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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\
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    \26\ Patel 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.
    \31\ Case notifications from state, local and territorial public 
health jurisdictions, Centers for Disease Control and Prevention, 
https://data.cdc.gov/Case-Surveillance/COVID-19-Case-Surveillance-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-Death-Counts-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-Hospital-Capa/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.
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    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

[[Page 19945]]

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\
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    \34\ See supra note 26.
    \35\ See 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).
    \36\ See 85 FR 16547 (Mar. 24, 2020); 85 FR 16548 (Mar. 24, 
2020).
    \37\ Supra 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-travelers-avoid-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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \39\ See 85 FR 16559 (Mar. 24, 2020).
    \40\ See 85 FR 17060 (Mar. 26, 2020).
    \41\ See supra note 7.
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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\
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    \42\ Oster 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.
    \43\ Payne 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.
    \45\ Ellington 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.
    \46\ CDC 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).
    \47\ Hendrix 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.
    \48\ Operation 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \49\ See 85 FR 44085 (July 21, 2020).
    \50\ See 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)).
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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

[[Page 19946]]

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.
---------------------------------------------------------------------------

    \51\ Science Brief: Emerging SARS-CoV-2 Variants--Updated, 
Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/scientific-brief-emerging-variants.html (updated Jan. 28, 2021).
    \52\ Per internal CDC calculations.
    \53\ COVID-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 & Johnson/Janssen); see generally 
https://www.fda.gov/emergency-preparedness-and-response/mcm-legal-regulatory-and-policy-framework/emergency-use-authorization#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.
    \54\ U.S. Food and Drug Administration, Emergency Use 
Authorization, https://www.fda.gov/emergency-preparedness-and-response/mcm-legal-regulatory-and-policy-framework/emergency-use-authorization#coviddrugs (last accessed Mar. 30, 2022).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \55\ CDC 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-to-require-negative-test.html (Dec. 24, 2020).
    \56\ See 86 FR 7387 (Jan. 26, 2021).
    \57\ CDC 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.
    \59\ This 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).
    \60\ See 86 FR 59720 (Oct. 28, 2021). The Order was extended in 
April, May, and October 2021.
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    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\
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    \61\ See 85 FR 56424 (Sept. 11, 2020).
    \62\ Order Suspending the Right to Introduce Certain Persons 
from Countries Where a Quarantinable Communicable Disease Exists, 85 
FR 65806 (Oct. 16, 2020).
    \63\ For 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).
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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\
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    \64\ Per internal CDC calculations.
    \65\ Trends in Number of COVID-19 Vaccinations in the US, 
Centers for Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#vaccination-trends (last updated Mar. 29, 2022).
---------------------------------------------------------------------------

    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

[[Page 19947]]

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\
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    \66\ See 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/fr-proof-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-safe-travel.html).
    \68\ See 85 FR 55292 (Sept. 4, 2020).
    \69\ See 86 FR 43244 (Aug. 6, 2021).
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    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.
---------------------------------------------------------------------------

    \70\ See supra note 63.
    \71\ 86 FR 42828, 42837-38.
---------------------------------------------------------------------------

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\
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    \72\ Omicron 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.
    \74\ Per internal CDC calculations.
    \75\ Woodworth KR, Moulia D, Collins JP, et al. The Advisory 
Committee on Immunization Practices' Interim Recommendation for Use 
of Pfizer-BioNTech 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.
    \76\ Omicron 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.
---------------------------------------------------------------------------

    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

[[Page 19948]]

measures up and down is critical to successfully fighting the pandemic.
---------------------------------------------------------------------------

    \77\ The 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).
    \78\ Those 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).
    \79\ See Proclamation 10329 (Dec. 28, 2021), 87 FR 149 (Jan. 3, 
2022) (terminating Proclamation 10315 regarding eight southern 
African countries).
    \80\ A 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-to-date.html (issued Jan. 2022, updated Mar. 22, 
2022).
    \81\ CDC 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-isolation-background.html (updated Feb. 25, 2022).
    \82\ Requirement 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/Amended-Global-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.
    \83\ See 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \84\ See 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).
    \86\ COVID Data Tracker Weekly Review: Stay Up to Date--
Interpretive Summary for Jan. 28, 2022, Centers for Disease Control 
and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/01282022.html (Jan. 28, 2022).
    \87\ See New Admissions of Patients with Confirmed COVID-19, 
United States, Centers for Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions (last 
updated Mar. 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-monitoring-community-levels.html (updated Mar. 4, 2022); Nationwide COVID-19 Infection- 
and Vaccination-Induced Antibody Seroprevalence (Blood donations), 
Centers for Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#nationwide-blood-donor-seroprevalence (last 
updated Feb. 18, 2022).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \90\ Transcript for CDC Media Telebriefing: Update on COVID-19, 
Centers for Disease Control and Prevention, https://www.cdc.gov/media/releases/2022/t0225-covid-19-update.html (Feb. 25, 2022). 
COVID-19 vaccines are highly effective against severe illness and 
death. Widespread uptake of these vaccines, coupled with higher 
rates of infection-induced immunity at the population level, as well 
as the broad availability of mitigation measures and effective 
therapeutics have moved the pandemic to a different phase. See also 
State of the Union Address, https://www.whitehouse.gov/state-of-the-union-2022/ (Mar. 1, 2022).
---------------------------------------------------------------------------

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\
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    \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.
    \93\ Supra note 1.
---------------------------------------------------------------------------

    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

[[Page 19949]]

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\
---------------------------------------------------------------------------

    \94\ Supra 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-Rationale-summary_COVID-19-Community-Levels_2022.02.23.pptx (Feb. 23, 2022).
    \96\ New COVID-19 admissions and the percent of staffed 
inpatient beds occupied represent the current potential for strain 
on the health system, while data on new cases acts as an early 
warning indicator of potential increases in health system strain in 
the event of a COVID-19 surge. Community vaccination coverage and 
other local information, like early alerts from surveillance, such 
as through wastewater or the number of emergency department visits 
for COVID-19, when available, can also inform decision making for 
health officials and individuals. Supra note 20.
    \97\ Supra note 88.
    \98\ Id.
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    Using these data, the COVID-19 Community Levels for each county are 
classified as low, medium, or high. CDC recommends using county COVID-
19 Community Levels to help determine which mitigation measures 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\
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    \99\ See supra note 20.
    \100\ COVID-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&null=CommunityLevels (last updated Mar. 31, 
2022); see also infra note 152.
    \101\ Per internal CDC calculations.
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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 non-
COVID-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\
---------------------------------------------------------------------------

    \102\ Supra note 73.
    \103\ Id.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \104\ Supra note 88.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \105\ See 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.
---------------------------------------------------------------------------

a. Test Availability
    Testing continues to be an essential part of COVID-19 mitigation 
due to the potential for asymptomatic and pre-symptomatic 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\
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    \106\ Testing is available for free at 21,500 locations around 
the country. See supra note 21.
    \107\ See COVID-19 Testing and Diagnostics Working Group (TDWG). 
U.S. Department of Health and Human Services, https://www.hhs.gov/coronavirus/testing/testing-diagnostics-working-group/index.html 
(last visited 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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-correctional-detention.html#Strategies (updated Feb. 15, 2022).
---------------------------------------------------------------------------

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

[[Page 19950]]

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\
---------------------------------------------------------------------------

    \109\ Supra 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).
    \111\ Thompson 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.
    \112\ CDC 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).
    \113\ See 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \114\ See supra note 75.
    \115\ COVID-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).
    \116\ See 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \117\ COVID-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-to-date.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.
    \118\ This 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.
    \119\ A 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \120\ Coronavirus disease (COVID-19): Vaccine access and 
allocation, World Health Organization, https://www.who.int/news-room/questions-and-answers/item/coronavirus-disease-(covid-19)-
vaccine-access-and-allocation (Aug. 6, 2021).
    \121\ Coronavirus (COVID-19) Vaccinations, Our World in Data, 
https://ourworldindata.org/covid-vaccinations#what-share-of-the-population-has-received-at-least-one-dose-of-the-covid-19-vaccine 
(updated Mar. 30, 2022).
    \122\ Id.
    \123\ See supra note 21.
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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.
---------------------------------------------------------------------------

    \124\ Treatments 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-for-severe-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-antibody-treatment-covid-19-retains (Feb. 11, 2022).
    \126\ See supra note 124.
    \127\ See 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-first-oral-antiviral-treatment-covid-19 (Dec. 22, 2022).
    \128\ Id. Antiviral pills will also be added to the stockpile 
for the first time.
---------------------------------------------------------------------------

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

[[Page 19951]]

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\
---------------------------------------------------------------------------

    \129\ See 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.
    \130\ See supra note 108.
    \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.
    \132\ Some congregate settings and detention facilities are 
resuming activities such as inter-facility transfers and detention 
of individuals for non-violent offenses, which has previously been 
paused due to the pandemic.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
    \134\ Per information provided by DHS.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \135\ These 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.
---------------------------------------------------------------------------

    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 age-appropriate 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.
---------------------------------------------------------------------------

    \136\ As noted above, CDC reviews the public health rationale 
underlying the need for the Order every 60 days.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \137\ See 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).
---------------------------------------------------------------------------

    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

[[Page 19952]]

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.
---------------------------------------------------------------------------

    \138\ CDC 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 non-binding 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-cruise-ships.html#program-for-cruise-ships (last updated Mar. 18, 2022); 
see also supra notes 38, 49, and 60.
    \139\ See supra notes 35, 59, 66, 78, and 79.
    \140\ See supra note 67.
    \141\ CDC Orders, Centers for Disease Control and Prevention, 
https://www.cdc.gov/coronavirus/2019-ncov/cdcresponse/laws-regulations.html (updated Mar. 12, 2022).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \142\ Since 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \143\ CBP most recently reported vaccination rates between 75% 
and 91% among its U.S. Border Patrol and Office of Field Operations 
personnel.
    \144\ Thus 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/covid-vaccinations (last visited Mar. 31, 2022).
    \145\ See 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.
    \146\ As 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.
---------------------------------------------------------------------------

    The August Order also highlighted the threat posed by emerging 
variants and the potential for a future, vaccine-resistant variant, 
either of which could negatively impact U.S. communities and local 
healthcare resources.\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,

[[Page 19953]]

vaccines, tests, and treatments can be updated and deployed 
quickly.\150\
---------------------------------------------------------------------------

    \147\ 86 FR 42828, 42837.
    \148\ Id.
    \149\ See supra note 21.
    \150\ Id.
---------------------------------------------------------------------------

    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 well-fitting 
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.
---------------------------------------------------------------------------

    \151\ Per internal CDC calculations.
    \152\ COVID-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).
    \153\ See 86 FR 42828, 42834 and 42838.
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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\
---------------------------------------------------------------------------

    \154\ See 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \159\ 85 FR at 17061 (emphasis added).
    \160\ 85 FR at 17068.
    \161\ 85 FR at 65807, 65812.
---------------------------------------------------------------------------

    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

[[Page 19954]]

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.
---------------------------------------------------------------------------

    \162\ See P.J.E.S. v. Wolf, 502 F. Supp. 3d 492 (D.D.C. 2020).
    \163\ Order, P.J.E.S. v. Mayorkas, et al., No. 20-5357 (D.C. 
Cir. Jan. 29, 2021), Doc. No. 1882899.
    \164\ See Huisha-Huisha v. Mayorkas, No. CV 21-100 (EGS), 2021 
WL 4206688, at *12 (D.D.C. Sept. 16, 2021).
    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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-by-case exceptions 
as a step towards the resumption of normal border operations under 
Title 8'').
    \167\ See supra I.B.2.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \168\ See Regents, 140 S. Ct. at 1913 (explaining that features 
evidencing the temporary and non-rights-conferring nature of a 
government program ``surely are pertinent in considering the 
strength of any reliance interests,'' and can be considered by the 
agency).
---------------------------------------------------------------------------

    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 short-term 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:
---------------------------------------------------------------------------

    \169\ See supra notes 1 and 4.
    \170\ See supra note 7.
---------------------------------------------------------------------------

    (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\
---------------------------------------------------------------------------

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

    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.
---------------------------------------------------------------------------

    \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.

---------------------------------------------------------------------------

[[Page 19955]]

    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\
---------------------------------------------------------------------------

    \173\ Id. at 56444.
    \174\ Id. at 56431; 56434.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \175\ 42 U.S.C. 265; 42 CFR 71.40.
    \176\ 42 CFR 71.40.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \177\ Control of Communicable Diseases; Foreign Quarantine: 
Suspension of the Right to Introduce and Prohibition of Introduction 
of Persons into United States from Designated Foreign Countries or 
Places for Public Health Purposes, 85 FR 56424 (Sept. 11, 2020).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \178\ See 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \180\ 42 CFR 71.40.
---------------------------------------------------------------------------

    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

[[Page 19956]]

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.
---------------------------------------------------------------------------

    \181\ See 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).
---------------------------------------------------------------------------

    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.
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    \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).
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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.
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    \184\ 42 U.S.C. 268; 42 CFR 71.40(d).
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    This Termination, like the preceding Orders issued under this 
authority, is not a rule subject to notice and comment under the 
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.
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    \185\ While 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).
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    With this Termination, I hereby determine that the danger of 
further introduction, transmission, or spread of COVID-19 into the 
United States from 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


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