Posted by K.M. Das The Center for Disease Control (“CDC”) is expected to post the first round of comments in response to its Notice of Proposed Rule Making (“NPRM”) relating to the Control of Communicable Diseases on Tuesday, December 6, 2005. “The intent of the proposed updates to 42 CFR Parts 70 and 71 is to clarify and strengthen existing procedures to enable CDC to respond more effectively to current and potential communicable disease threats.” (see here). The changes to 42 C.F.R. Parts 70 and 71, based largely on the authority granted to the Director of the CDC in 42 U.S.C. ㋔㋔ 264-271 (㋔㋔ 361-368 of the Public Health Service Act), affect the passenger information that airlines will be expected to maintain and provide to the CDC within 12 hours of a request. In particular, as illustrated in this <a href="table, airlines will be expected to collect significant amounts of information that they are not currently required to collect (even under the Department of Homeland Security’s Advanced Passenger Information System). Airlines will be required to collect this information from each crewmember and passenger, or head of households if the passenger is under the age of 12. Airlines must maintain this information for at least 60 days, and provide it to the CDC within 12 hours of a CDC request. The CDC also reserves the right to request “additional information in the airline’s possession that may be necessary to prevent the introduction, transmission, or spread of communicable diseases.” Id. at 12. Airlines will not be required to verify the accuracy of the information provided. Based on public opinion surveys, the CDC believes that most passengers will voluntarily provide this information. “[P]assengers who decline to provide contact information will not be prohibited from traveling.” It is not clear whether “contact information” refers to the entire set of data proposed under the NPRM, or only to the current home address, phone number, and e-mail. The CDC has proposed these changes based on its experience during and following the SARS outbreak. Although most airlines cooperated with the CDC during the SARS outbreak, “citing information privacy concerns, some airlines have increasingly required that CDC accompany its request for passenger information with a written order explaining CDC’s legal authority for requesting such information.” Id. at 8-9. Based on the reaction of these airlines, the Government Accountability Office has concluded that the CDC’s efforts to contact “passengers from flights and ships on which a traveler was diagnosed with SARS after arriving in the United States . . . were hampered by airline concerns and procedural issues.” The GAO recommended that “Secretary of HHS complete steps to ensure that the agency can obtain passenger contact information in a timely manner, including, if necessary, the promulgation of specific regulations.” Addressing privacy concerns, the NPRM states:

Information and records provided to CDC will be maintained and stored in accordance with HHS and CDC policies and in accordance with Privacy Act (5 U.S.C. ㋔552a) and its implementing regulations (45 C.F.R. Part 5b), which require that the records only be used for authorized purposes by authorized personnel. Paper records will be kept in locked storage containers and access will only be allowed for authorized personnel; electronic records will be inaccessible to all CDC employees except those that are authorized to use them in accordance with Federal law. After the legal retention period for these records has expired, they will be destroyed (shredding or maceration for paper files; wiping of electronic files) to ensure that the information is not recoverable and to ensure the privacy and confidentiality of those involved. CDC has a long history of managing sensitive data in a manner that protects the confidentiality and privacy of the public. This positive track record will continue with the management of these records.

The CDC proposes to keep the data for ten years until it develops a new policy to deal with the new data it proposes to gather. The NPRM does not address whether the CDC will share this data with other federal agencies, as required under Executive Order 13388. The NPRM, under proposed 42 C.F.R. ㋔ 70.6, will also require “any person who knows that he or she is in the qualifying stage, as defined in ㋔ 70.1, of any quarantinable disease to obtain a travel permit from the Director if he/she intends to travel in interstate traffic or from one state or possession into any other state or possession.” Further, proposed 42 C.F.R. ㋔ 70.13, “authorizes the Director at airports and other locations to conduct screenings to detect the presence of ill persons. . . . Methods of screening may include visual inspection, electronic temperature monitors, and other methods determined appropriate by the Director to detect the presence of ill persons.” The NPRM does not specify whether this screening will be voluntary or even whether passengers will be informed that they are subject to such screening. Additionally, section 70.14(a) “authorizes the Director to provisionally quarantine a person or group of persons believed to be in the qualifying stage of a quarantinable disease. Ordinarily, provisional quarantine will be ordered by the quarantine officer at the port of entry, but may also be ordered by other authorized agents of the Director.” The NPRM does not specify who these authorized agents will be, although typically it will be the quarantine officer at the port of entry. A person may be “provisionally quarantined for up to three days without a quarantine order. If the person is to be quarantined for more than three days, the CDC will issue a “quarantine order.” The three-day limit is based on the CDC’s experience that it takes that long to determine “whether certain disease-causing microorganisms are present in samples that may be obtained from ill or deceased persons.” Section 70.14(e) explains that “persons subject to provisional quarantine may be offered medical treatment, prophylaxis, or vaccination as the Director deems necessary to prevent the transmission or spread of disease.” Section 70.19 “authorizes the Director to order medical examination or monitoring of persons believed to be in the qualifying stage of a quarantinable disease. Production of information concerning familial and social contacts, travel itinerary, medical history, place of work and vaccination status may also be ordered by the Director.” A person may refuse medical examination, but then the person will remain subject to provisional quarantine or quarantine. 42 C.F.R. ㋔ 71 deals with the introduction of communicable diseases into the United States from foreign countries. Proposed section 71 contains subsections that correspond identically to the subsections of 42 C.F.R. ㋔ 70 discussed above. The CDC has released a two-page fact sheet relating to the NPRM, which does not appear to contain much of this specific information.