Authorizing Legislation: Section 361 of the PHSA (42 USC 264)

42 U.S.C.
United States Code, 2011 Edition
Title 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 6A - PUBLIC HEALTH SERVICE
SUBCHAPTER II - GENERAL POWERS AND DUTIES
Part G - Quarantine and Inspection
Sec. 264 - Regulations to control communicable diseases
From the U.S. Government Publishing Office, www.gpo.gov

§264. Regulations to control communicable diseases
(a) Promulgation and enforcement by Surgeon General
The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such
regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of
communicable diseases from foreign countries into the States or possessions, or from one State or
possession into any other State or possession. For purposes of carrying out and enforcing such regulations,
the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest
extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of
dangerous infection to human beings, and other measures, as in his judgment may be necessary.
(b) Apprehension, detention, or conditional release of individuals
Regulations prescribed under this section shall not provide for the apprehension, detention, or conditional
release of individuals except for the purpose of preventing the introduction, transmission, or spread of such
communicable diseases as may be specified from time to time in Executive orders of the President upon the
recommendation of the Secretary, in consultation with the Surgeon General,1.
(c) Application of regulations to persons entering from foreign countries
Except as provided in subsection (d) of this section, regulations prescribed under this section, insofar as
they provide for the apprehension, detention, examination, or conditional release of individuals, shall be
applicable only to individuals coming into a State or possession from a foreign country or a possession.
(d) Apprehension and examination of persons reasonably believed to be infected
(1) Regulations prescribed under this section may provide for the apprehension and examination of any
individual reasonably believed to be infected with a communicable disease in a qualifying stage and (A) to
be moving or about to move from a State to another State; or (B) to be a probable source of infection to
individuals who, while infected with such disease in a qualifying stage, will be moving from a State to
another State. Such regulations may provide that if upon examination any such individual is found to be
infected, he may be detained for such time and in such manner as may be reasonably necessary. For
purposes of this subsection, the term “State” includes, in addition to the several States, only the District of
Columbia.
(2) For purposes of this subsection, the term “qualifying stage”, with respect to a communicable disease,
means that such disease—
(A) is in a communicable stage; or
(B) is in a precommunicable stage, if the disease would be likely to cause a public health emergency if
transmitted to other individuals.
(e) Preemption
Nothing in this section or section 266 of this title, or the regulations promulgated under such sections,
may be construed as superseding any provision under State law (including regulations and including
provisions established by political subdivisions of States), except to the extent that such a provision
conflicts with an exercise of Federal authority under this section or section 266 of this title.
(July 1, 1944, ch. 373, title III, §361, 58 Stat. 703; 1953 Reorg. Plan No. 1, §§5, 8, eff. Apr. 11, 1953, 18
F.R. 2053, 67 Stat. 631; Pub. L. 86–624, §29(c), July 12, 1960, 74 Stat. 419; Pub. L. 94–317, title III,
§301(b)(1), June 23, 1976, 90 Stat. 707; Pub. L. 107–188, title I, §142(a)(1), (2), (b)(1), (c), June 12, 2002,
116 Stat. 626, 627.)
Amendments

2002—Pub. L. 107–188, §142(a)(1), (2), (b)(1), and (c), which directed certain amendments to section 361
of the Public Health Act, was executed by making the amendments to this section, which is section 361 of the
Public Health Service Act, to reflect the probable intent of Congress. See below.
Subsec. (b). Pub. L. 107–188, §142(a)(1), substituted “Executive orders of the President upon the
recommendation of the Secretary, in consultation with the Surgeon General,” for “Executive orders of the
President upon the recommendation of the National Advisory Health Council and the Surgeon General”.
Subsec. (d). Pub. L. 107–188, §142(a)(2), (b)(1), substituted in first sentence “Regulations” for “On
recommendation of the National Advisory Health Council, regulations”, “in a qualifying stage” for “in a
communicable stage” in two places, designated existing text as par. (1) and substituted “(A)” and “(B)” for
“(1)” and “(2)”, respectively, and added par. (2).
Subsec. (e). Pub. L. 107–188, §142(c), added subsec. (e).
1976—Subsec. (d). Pub. L. 94–317 inserted provision defining “State” to include, in addition to the several
States, only the District of Columbia.
1960—Subsec. (c). Pub. L. 86–624 struck out reference to Territory of Hawaii.
Effective Date of 1960 Amendment
Amendment by Pub. L. 86–624 effective Aug. 21, 1959, see section 47(f) of Pub. L. 86–624, set out as a
note under section 201 of this title.
Transfer of Functions
Office of Surgeon General abolished by section 3 of Reorg. Plan No. 3 of 1966, eff. June 25, 1966, 31 F.R.
8855, 80 Stat. 1610, and functions thereof transferred to Secretary of Health, Education, and Welfare by
section 1 of Reorg. Plan No. 3 of 1966, set out as a note under section 202 of this title. Secretary of Health,
Education, and Welfare redesignated Secretary of Health and Human Services by section 509(b) of Pub. L.
96–88 which is classified to section 3508(b) of Title 20, Education.
Functions of Federal Security Administrator transferred to Secretary of Health, Education, and Welfare and
all agencies of Federal Security Agency transferred to Department of Health, Education, and Welfare by
section 5 of Reorg. Plan No. 1 of 1953, set out as a note under section 3501 of this title. Federal Security
Agency and office of Administrator abolished by section 8 of Reorg. Plan No. 1 of 1953. Secretary and
Department of Health, Education, and Welfare redesignated Secretary and Department of Health and Human
Services by section 509(b) of Pub. L. 96–88 which is classified to section 3508(b) of Title 20.
Evaluation of Public Health Authorities
Pub. L. 110–392, title I, §121, Oct. 13, 2008, 122 Stat. 4200, provided that:
“(a) In General.—Not later than 180 days after the date of enactment of the Comprehensive Tuberculosis
Elimination Act of 2008 [Oct. 13, 2008], the Secretary of Health and Human Services shall prepare and
submit to the appropriate committees of Congress a report that evaluates and provides recommendations on
changes needed to Federal and State public health authorities to address current disease containment
challenges such as isolation and quarantine.
“(b) Contents of Evaluation.—The report described in subsection (a) shall include—
“(1) an evaluation of the effectiveness of current policies to detain patients with active tuberculosis;
“(2) an evaluation of whether Federal laws should be strengthened to expressly address the movement
of individuals with active tuberculosis; and
“(3) specific legislative recommendations for changes to Federal laws, if any.
“(c) Update of Quarantine Regulations.—Not later than 240 days after the date of enactment of this Act
[Oct. 13, 2008], the Secretary of Health and Human Services shall promulgate regulations to update the
current interstate and foreign quarantine regulations found in parts 70 and 71 of title 42, Code of Federal
Regulations.”
Executive Order No. 12452
Ex. Ord. No. 12452, Dec. 22, 1983, 48 F.R. 56927, which specified certain communicable diseases for
regulations providing for the apprehension, detention, or conditional release of individuals to prevent the
introduction, transmission, or spread of such diseases, was revoked by Ex. Ord. No. 13295, §5, Apr. 4, 2003,
68 F.R. 17255, set out below.
Ex. Ord. No. 13295. Revised List of Quarantinable Communicable Diseases
Ex. Ord. No. 13295, Apr. 4, 2003, 68 F.R. 17255, as amended by Ex. Ord. No. 13375, §1, Apr. 1, 2005, 70
F.R. 17299, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America,
including section 361(b) of the Public Health Service Act (42 U.S.C. 264(b)), it is hereby ordered as follows:
Section 1. Based upon the recommendation of the Secretary of Health and Human Services (the
“Secretary”), in consultation with the Surgeon General, and for the purpose of specifying certain
communicable diseases for regulations providing for the apprehension, detention, or conditional release of
individuals to prevent the introduction, transmission, or spread of suspected communicable diseases, the
following communicable diseases are hereby specified pursuant to section 361(b) of the Public Health Service
Act:
(a) Cholera; Diphtheria; infectious Tuberculosis; Plague; Smallpox; Yellow Fever; and Viral Hemorrhagic
Fevers (Lassa, Marburg, Ebola, Crimean-Congo, South American, and others not yet isolated or named).
(b) Severe Acute Respiratory Syndrome (SARS), which is a disease associated with fever and signs and
symptoms of pneumonia or other respiratory illness, is transmitted from person to person predominantly by
the aerosolized or droplet route, and, if spread in the population, would have severe public health
consequences.
(c) Influenza caused by novel or reemergent influenza viruses that are causing, or have the potential to
cause, a pandemic.
Sec. 2. The Secretary, in the Secretary's discretion, shall determine whether a particular condition
constitutes a communicable disease of the type specified in section 1 of this order.
Sec. 3. The functions of the President under sections 362 and 364(a) of the Public Health Service Act (42
U.S.C. 265 and 267(a)) are assigned to the Secretary.
Sec. 4. This order is not intended to, and does not, create any right or benefit enforceable at law or equity
by any party against the United States, its departments, agencies, entities, officers, employees or agents, or any
other person.
Sec. 5. Executive Order 12452 of December 22, 1983, is hereby revoked.
George W. Bush.      
1 So in original. Comma probably should not appear.