84 
the past several years, and its interpretation by the courts. Enclosed is a copy 
of each of the documents to which reference is made in this letter, to facilitate 
your own evaluation. 
I 
The original Federal communicable disease law was passed by Congress in 
1893 (27 Stat. 449). As you will see, Section 3 authorized the Supervising Sur- 
geon-General of the Marine Hospital Service, Department of the Treasury, to 
issue regulations to prevent the introduction of contagious and infectious dis- 
eases into one state from another. Unfortunately, I have not had the opportunity 
to research and review the legislative history of this Act, and therefore can- 
not provide information on the specific congressional intent. It appears from 
the wording of the statute itself, however, that the Department of Treasury 
was given very broad and all-encompassing authority to prevent the spread 
of disease. 
II 
In 1944 Congress consolidated and revised all of the laws relating to the 
public health service in the Public Health Service Act (58 Stat. 682). (A copy 
of relevant portions of the House Report on that bill, as reproduced in 1944 U.S. 
Code and Congressional Service 1211. is enclosed. Section 361, which was later 
codified in the United States Code as 42 U.S.C. 264, is discussed on pages 1214 
and 1234^1235.) 
As you know, Section 361. as enacted in 1944, provides broadly that : 
“(a) The Surgeon General, with the approval of the Secretary, is authorized 
to make and enforce such regulations as in his judgment are necessary to pre- 
vent 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, fumi- 
gation, 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.” 
In addition. Section 368(a) provides that “Any person who violates any 
regulation prescribed under sections 361 . . . shall be punished by a fine of not 
more than $1,000 or by imprisonment for not more than one year, or both.” 
The wording of Section 361 is uniquely broad. By its terms, this provision 
authorizes HEW to promulgate any regulations necessary to prevent com- 
municable disease, and to provide for inspection and any other enforcement 
measures that may be necessary. The legislative history does not detract from 
the broad statutory language. The House Report states that the “confusing 
limitations” in the 1893 Act were intentionally eliminated and that the new law 
was intended to “expressly sanction the use of conventional public-health 
enforcement methods” as well as to “authorize destruction of contaminated 
articles or infected animals which are dangerous to man, in those cases where 
no other disposition is safely possible.” 
Thus, there is no tenable argument that Section 361 was intended narrowly 
to be limited only to quarantine of human beings or humans and animals (since 
the law encompasses all “articles.” a term commonly used in regulatory statutes 
to encompass all substances or objects of any kind), nor is there any argument 
that inspection is not permitted (since it is specifically mentioned) or that a wide 
range of other enforcement mechanisms is not authorized (since the law permits 
any “other mensnres” for carrying out and enforcing any regulations as in the 
judgment of HEW may be necessary) . 
Ill 
Questions have been raised about the application of Section 361 to intrastate 
(as contrasted with interstate) commerce. Questions have also been raised as to 
whether Section 361 can be interpreted to authorize the prohibition fas con- 
trasted with the regulation or control) of specified activity. Both of these issues 
have now been definitively resolved in a 1977 court decision upholding the legality 
of an FDA regulation banning all small net turtles from both intrastate and 
interstate commerce under the sole authority of Section 361. 
In the Federal Register of April 7, 1972 (37 F.R. 7005), FDA proposed a pro- 
hibition of the importation of small pet turtles, and a requirement of bacterio- 
[Appendix B — 343] 
