42 U.S.C. § 264

Regulations to control communicable diseases

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(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,11 So in original. The comma probably should not appear..

Except as provided in subsection (d), 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.)Editorial NotesAmendments

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.

Statutory Notes and Related SubsidiariesChange of Name

“Secretary of Health and Human Services” substituted for “Secretary of Health, Education, and Welfare” in subsecs. (a) and (b) pursuant to section 509(b) of Pub. L. 96–88, which is classified to section 3508(b) of Title 20, Education.

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.

Extension of Eviction Moratorium

Pub. L. 116–260, div. N, title V, § 502, Dec. 27, 2020, 134 Stat. 2078, provided that: “The order issued by the Centers for Disease Control and Prevention under section 361 of the Public Health Service Act (42 U.S.C. 264), entitled ‘Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID–19’ (85 Fed. Reg. 55292 (September 4, 2020)[)] is extended through January 31, 2021, notwithstanding the effective dates specified in such Order.”

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 DocumentsTransfer 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. Office of Surgeon General reestablished within the Office of the Assistant Secretary for Health, see Notice of Department of Health and Human Services, Office of the Assistant Secretary for Health, Mar. 30, 1987, 52 F.R. 11754.

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.

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; Ex. Ord. No. 13674, § 1, July 31, 2014, 79 F.R. 45671; Ex. Ord. No. 14047, Sept. 17, 2021, 86 F.R. 52591, 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; Measles; 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 syndromes, which are diseases that are associated with fever and signs and symptoms of pneumonia or other respiratory illness, are capable of being transmitted from person to person, and that either are causing, or have the potential to cause, a pandemic, or, upon infection, are highly likely to cause mortality or serious morbidity if not properly controlled. This subsection does not apply to influenza.

(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.

Notes of Decisions

Cited in 70 cases (52 in the last 5 years), 1956–2026 · leading case: Tiger Lily, LLC v. HUD, 992 F.3d 518 (6th Cir. 2021).

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Tiger Lily, LLC v. HUD, 992 F.3d 518 (6th Cir. 2021). · cites it 11× “The CDC purported to find statutory authority for the Halt Order in Section 361 of the Public Health Service Act, codified at 42 U.S.C. § 264 . Id. That section provides the Secretary of Health and Human Services with the power to “make and enforce such regulations as in his…”

Richard Lee Brown v. Sec'y, U.S. Dep't of Health & Human Servs., 4 F.4th 1220 (11th Cir. 2021). · cites it 13× “The CDC pointed to 42 U.S.C. § 264 as providing a statutory basis for its order.”

Alabama Assn. of Realtors v. Dep't of Health & Human Servs., 594 U.S. 758 (2021). · cites it 4× “703 , as amended, 42 U. S. C. §264 (a). That provision states: “The Surgeon General, with the approval of the [Secre- tary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment Cite as: 594 U.”

Tiger Lily, LLC v. HUD, 5 F.4th 666 (6th Cir. 2021). · cites it 6× “” 42 U.S.C. § 264 (a). To carry out and enforce “such regulations,” the Secretary can “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…”

Darby Dev. Co., Inc. v. United States, 112 F.4th 1017 (Fed. Cir. 2024). · cites it 4× “The CDC rep- resented that it was issuing the Order under the authority of section 361 of the Public Health Service Act (“PHSA”) 1 (codified as amended at 42 U.S.C. § 264 ) as well as 42 C.F.R. § 70.”

Indep. Turtle Farmers of Louisiana, Inc. v. United States, 703 F. Supp. 2d 604 (W.D. La. 2010). · cites it 6× “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…”

State of Florida v. Dep't of Health & Human Servs., 19 F.4th 1271 (11th Cir. 2021). · cites it 2× “The CDC claimed the au- thority to impose the eviction moratorium under the Public Health Services Act, 42 U.S.C. § 264 (a). This statute authorized the CDC to make and enforce regulations necessary “to prevent the intro- duction, transmission, or spread of communicable diseases…”

United States v. Regenerative Sciences, LLC, 741 F.3d 1314 (D.C. Cir. 2014). · cites it 3× “See 42 U.S.C. § 264 (a). . Pursuant to that authority, in 2001 the FDA promulgated regulations to ensure the safety of human cells, tissues, and cellular or tissue-based products (HCT/Ps) used for therapeutic purposes.”

Norfolk & W. Ry. Co. v. Pennsylvania Pub. Util. Comm'n, 413 A.2d 1037 (Pa. 1980). · cites it 2× “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…”

State of La. v. Mathews, 427 F. Supp. 174 (E.D. La. 1977). · cites it 5× “62 ] banning the sale and distribution of small turtles pursuant to authority conferred by Section 361 of the Public Health Service Act, 42 U.S.C. § 264 . Plaintiffs, the State of Louisiana, for and on behalf of the National Turtle Farmers and Shippers Association, Inc.”

People for the Ethical Treatment of Animals v. U.S. Dep't of Health & Human Servs., 901 F.3d 343 (D.C. Cir. 2018). “53(a) ; see Public Health Service Act, 42 U.S.C. § 264 . HHS identified relevant information collected from ten importers and, as required by Executive Order No.”

Jonathan Corbett v. TSA, 19 F.4th 478 (D.C. Cir. 2021). · cites it 2× “at 2488 (discussing 42 U.S.C. § 264 (a)). The eviction moratorium was “markedly different” from those 20 direct actions targeting disease Congress had listed in the provision.”

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— 42 U.S.C. § 264(b) — 1 case

Chambless Enter. L L C v. Redfield (W.D. La. 2020).

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