[House Report 118-53]
[From the U.S. Government Publishing Office]


118th Congress    }                                     {       Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                     {       118-53

======================================================================



 
           SECURING THE BORDER FOR PUBLIC HEALTH ACT OF 2023

                                _______
                                

  May 11, 2023.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mrs. Rodgers of Washington, from the Committee on Energy and Commerce, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 801]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 801) to amend title III of the Public Health 
Service Act to provide for suspension of entries and imports 
from designated countries to prevent the spread of communicable 
diseases and import into the United States of certain 
controlled substances, having considered the same, reports 
favorably thereon without amendment and recommends that the 
bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Committee Action.................................................     2
Committee Votes..................................................     2
Oversight Findings and Recommendations...........................     4
New Budget Authority, Entitlement Authority, and Tax Expenditures     4
Congressional Budget Office Estimate.............................     4
Federal Mandates Statement.......................................     5
Statement of General Performance Goals and Objectives............     5
Duplication of Federal Programs..................................     5
Related Committee and Subcommittee Hearings......................     6
Committee Cost Estimate..........................................     6
Earmark, Limited Tax Benefits, and Limited Tariff Benefits.......     6
Advisory Committee Statement.....................................     6
Applicability to Legislative Branch..............................     6
Section-by-Section Analysis of the Legislation...................     6
Changes in Existing Law Made by the Bill, as Reported............     7
Minority, Additional, or Dissenting Views........................     9

                          Purpose and Summary

    This bill allows the Secretary of the Department of Health 
and Human Services, after consultation with the Attorney 
General, to restrict the entry of persons or property from 
foreign countries to prevent the introduction of certain 
controlled substances into the United States.

                  Background and Need for Legislation

    Currently, 42 U.S.C. 265 allows the Secretary, in the 
interest of public health, to restrict the entry of persons or 
property from certain designated countries when there is 
serious danger of introduction of a communicable disease into 
the United States.
    The United States is facing an unprecedented illicit drug 
crisis, and simultaneously suffering under skyrocketing 
overdose and poisoning rates. This bill would expand the 
current already existing authority under 42 U.S.C. 265 to allow 
the Secretary, in the interest of public health, to restrict 
the entry of persons or property from certain designated 
countries when there is serious danger of introduction of a 
communicable disease or, after consultation with the Attorney 
General, certain controlled substances. The certain controlled 
substances include, as defined in the corresponding Code of 
Federal Regulations, narcotic drugs, opiates, opium 
derivatives, stimulants, and fentanyl-related substances.

                            Committee Action

    On February 15, 2023, the Subcommittees on Oversight and 
Investigations and Health, jointly, held a hearing on H.R. 801. 
The Subcommittee received testimony from:
           Mr. Urbino Martinez, Brooks County Sheriff
           Mr. Stuart Archer, CEO, Oceans Health Care
           Ms. Rochelle M. Garza, President, Texas 
        Civil Rights Project
           Mr. Brandon Judd, President, National Border 
        Patrol Council
    On March 8, 2023, the Subcommittee on Health met in open 
markup session and forwarded H.R. 801, without amendment, to 
the full Committee by a recorded vote of 17 yeas and 12 nays. 
On March 23 and 24, 2023, the full Committee on Energy and 
Commerce met in open markup session and ordered H.R. 801, 
without amendment, favorably reported to the House by a 
recorded vote of 24 yeas and 19 nays.

                            Committee Votes

    Clause 3(b) of rule XIII requires the Committee to list the 
record votes on the motion to report legislation and amendments 
thereto. The following reflects the record votes taken during 
the Committee consideration:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                 Oversight Findings and Recommendations

    Pursuant to clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII, the Committee held a hearing and made findings that 
are reflected in this report.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    Pursuant to clause 3(c)(2) of rule XIII, the Committee 
finds that H.R. 801 would result in no new or increased budget 
authority, entitlement authority, or tax expenditures or 
revenues.

                  Congressional Budget Office Estimate

    Pursuant to clause 3(c)(3) of rule XIII, the following is 
the cost estimate provided by the Congressional Budget Office 
pursuant to section 402 of the Congressional Budget Act of 
1974:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    H.R. 801 would authorize the Department of Health and Human 
Services (HHS) to suspend the entry of people and goods into 
the United States from certain countries if the department 
determines that doing so would prevent the arrival of certain 
controlled substances, including opiates and fentanyl. The bill 
would require HHS to consult with the Department of Justice 
before making such a determination.
    Under current law, by invoking its authority under Section 
362 of the Public Health Service Act, HHS can deny entry to 
people or goods from certain countries to prevent the spread of 
communicable diseases. Furthermore, the government may prevent 
certain people (but not goods) from coming into the country if 
their entry is determined to be detrimental to U.S. interests, 
under Section 212(f) of the Immigration and Nationality Act.
    Direct spending: Enacting H.R. 801 would expand the 
government's authority to restrict the import of goods into the 
United States. If that authority is used, it would result in a 
net increase in direct spending because any such restrictions 
would decrease the collection of certain customs fees charged 
on the import of these goods. Since these fees are classified 
in the budget as direct spending, any decrease in collections 
would result in an increase in direct spending. A portion of 
the fees collected can be spent by Customs and Border 
Protection without further appropriation; therefore, the 
increase in direct spending under the bill would be less than 
the total change in customs fees collected.
    CBO estimates that direct spending would increase by less 
than $500,000 under the bill. HHS has rarely used its existing 
Section 362 authority to restrict the import of goods into the 
United States, and CBO's estimate incorporates the assumption 
that the new authority under H.R. 801 would also be used only 
rarely. However, the estimate of costs is subject to 
significant uncertainty. If the new authority is not used at 
all during the 2023-2033 period, H.R. 801 would have no effect 
on direct spending during that period. If the authority is used 
more frequently than CBO anticipates, or if an order is issued 
that affects a larger number of imports than CBO expects, costs 
would be larger. Additionally, if the authority under H.R. 801 
is used more than CBO expects, total output of the economy 
could change (through changes to international trade, for 
example). CBO has not undertaken an analysis of those effects.
    CBO estimates that the bill would not affect the federal 
budget through immigration channels because H.R. 801 would not 
expand the government's authority to restrict immigration 
beyond that already authorized under the Immigration and 
Nationality Act. Numerous Presidents have invoked that 
authority in recent decades, most recently in Presidential 
Proclamations 9645 and 9983, issued in 2017 and 2020, 
respectively, which prohibited entry into the United States by 
nationals of certain countries.
    Spending subject to appropriation: CBO estimates that it 
would cost HHS less than $500,000 to promulgate rules and 
enforce orders if the agency uses the authority under the bill. 
Such spending would be subject to the availability of 
appropriated funds.
    The CBO staff contact for this estimate is Jeremy Crimm. 
The estimate was reviewed by Chad Chirico, Deputy Director of 
Budget Analysis.
                                         Phillip L. Swagel,
                             Director, Congressional Budget Office.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

         Statement of General Performance Goals and Objectives

    Pursuant to clause 3(c)(4) of rule XIII, the general 
performance goal or objective of this legislation is to help 
stem the tide of the nation's illicit drug crisis by 
restricting the import of persons and property that would 
further increase the introduction of certain controlled 
substances across our borders.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of rule XIII, no provision of 
H.R. 801 is known to be duplicative of another Federal program, 
including any program that was included in a report to Congress 
pursuant to section 21 of Public Law 111-139 or the most recent 
Catalog of Federal Domestic Assistance.

              Related Committee and Subcommittee Hearings

    Pursuant to clause 3(c)(6) of rule XIII,
          1. The following hearing was used to develop or 
        consider H.R. 801: Joint Oversight and Investigations 
        Subcommittee and Health Subcommittee Field Hearing on 
        February 15, 2023: ``President Biden's Border Crisis is 
        a Public Health Crisis.''
          2. The following related hearing was held on February 
        15, 2023: Joint Oversight and Investigations 
        Subcommittee and Health Subcommittee Field Hearing: 
        ``President Biden's Border Crisis is a Public Health 
        Crisis.''

                        Committee Cost Estimate

    Pursuant to clause 3(d)(1) of rule XIII, the Committee 
adopts as its own the cost estimate prepared by the Director of 
the Congressional Budget Office pursuant to section 402 of the 
Congressional Budget Act of 1974.

       Earmark, Limited Tax Benefits, and Limited Tariff Benefits

    Pursuant to clause 9(e), 9(f), and 9(g) of rule XXI, the 
Committee finds that H.R. 801 contains no earmarks, limited tax 
benefits, or limited tariff benefits.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             Section-by-Section Analysis of the Legislation


Section 1. Short title

    Section 1 provides a short title of Securing the Border for 
Public Health Act of 2023.

Section 2. Suspension of entries and imports from designated countries 
        to prevent spread of communicable diseases and import of 
        certain controlled substances

    Section 2 amends Section 362 of the Public Health Service 
Act (42 U.S.C. 265) to authorize the Secretary of the 
Department of Health and Human Services, in the interest of 
public health, and after consultation with the Attorney 
General, to restrict the entry of persons and property from 
countries designated by the Secretary when there is a 
determination that introduction of certain controlled 
substances into the United States would pose a serious danger. 
This section defines ``certain controlled substance'' to 
include, as defined in the corresponding Code of Federal 
Regulations, narcotic drugs, opiates, opium derivatives, 
stimulants, and fentanyl-related substances.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                       PUBLIC HEALTH SERVICE ACT




           *       *       *       *       *       *       *
TITLE III--GENERAL POWERS AND DUTIES OF PUBLIC HEALTH SERVICE

           *       *       *       *       *       *       *



Part G--Quarantine and Inspection

           *       *       *       *       *       *       *



       [suspension of entries and imports from designated places

  [Sec. 362. Whenever the Surgeon General determines that by 
reason of the existence of any communicable disease in a 
foreign country there is serious danger of the introduction of 
such disease into the United States, and that this danger is so 
increased by the introduction of persons or property from such 
country that a suspension of the right to introduce such 
persons and property is required in the interest of the public 
health, the Surgeon General, in accordance with regulations 
approved by the President, shall have the power to prohibit, in 
whole or in part, the introduction of persons and property from 
such countries or places as he shall designate in order to 
avert such danger, and for such period of time as he may deem 
necessary for such purpose.]

SEC. 362. SUSPENSION OF ENTRIES AND IMPORTS FROM DESIGNATED COUNTRIES 
                    TO PREVENT SPREAD OF COMMUNICABLE DISEASES AND 
                    IMPORT OF CERTAIN CONTROLLED SUBSTANCES.

  (a) In General.--Whenever the Secretary makes a determination 
described in subsection (b) with respect to a country, the 
Secretary, by regulation, shall have the power to prohibit, in 
whole or in part, for a period of time determined to be 
necessary by the Secretary, the introduction of persons and 
property from such countries designated by the Secretary in 
order to avert the danger described in such subsection.
  (b) Determination.--A determination described in this 
subsection is a determination by the Secretary that, by reason 
of the existence of any communicable disease or, after 
consultation with the Attorney General, certain controlled 
substances in a foreign country--
          (1) there is serious danger of the introduction of 
        such disease or substances into the United States; and
          (2) such danger is so increased by the introduction 
        of persons or property from such country that a 
        suspension of the right to introduce such persons and 
        property is required in the interest of the public 
        health.
  (c) Definition.--In this section, the term ``certain 
controlled substance'' means--
          (1) a narcotic drug as defined in section 1300.01 of 
        title 21, Code of Federal Regulations (or successor 
        regulations);
          (2) an opiate as described in section 1308.11(b) or 
        1308.12(c) of such title (or successor regulations);
          (3) an opium derivative as described in section 
        1308.11(c) of such title (or successor regulations);
          (4) a stimulant as described in section 1308.11(f) or 
        1308.12(d) of such title (or successor regulations); 
        and
          (5) a fentanyl-related substance as described in 
        section 1308.11(h) of such title (or successor 
        regulations).

           *       *       *       *       *       *       *


                             MINORITY VIEWS

    H.R. 801 would vastly expand the authority of the Secretary 
of Health and Human Services (HHS) to deny entry of people into 
the United States, including those seeking legal asylum 
protections, should the Secretary determine that there is a 
danger of the introduction of certain controlled substances 
into the U.S.
    This policy amends Section 362 of the Public Health Service 
Act, often referred to as ``Title 42'' authorities. Under 
current law, the federal government may suspend the right to 
introduce persons or property into the United States if there 
is a serious danger of the introduction of a communicable 
disease into the U.S.\1\ However, this legislation would vastly 
expand this authority to permit the Secretary to deny entry of 
persons or property into the United States should he or she 
determine, after consultation with the Attorney General, that 
there is a ``serious danger'' of the introduction of certain 
controlled substances into the United States. While the public 
health provisions under Section 362 were intended to prevent 
the spread of communicable diseases in the United States, this 
provision was not intended to allow the Secretary to have the 
unchecked authority to deny entry of persons or property into 
the country, which H.R. 801 would provide.
---------------------------------------------------------------------------
    \1\42 U.S.C. 265.
---------------------------------------------------------------------------
    This policy could be easily misused to inappropriately and 
inhumanely block entry of immigrants and those seeking asylum 
into the United States. The bill would permit the Secretary to 
close U.S. borders to entrants of any country that the 
Secretary may choose based on an overbroad and vague 
determination that there is a ``serious danger'' of certain 
controlled substances entering the United States. H.R. 801 does 
not define how the Secretary should make a determination of 
what constitutes a ``serious danger'' to warrant the use of 
this authority, nor does the legislation provide any additional 
parameters or limitations under what circumstances the 
Secretary could exercise this authority, beyond simply 
requiring consultation with the Attorney General.
    As drafted, H.R. 801 could also be interpreted to permit 
the Secretary to prohibit entry of property into the United 
States through legal ports of entry, potentially blocking entry 
of vital goods into the U.S. should the Secretary determine, 
virtually unilaterally, that there is a serious danger of the 
entry of certain controlled substances from a specific country. 
This authority could be easily abused.
    The federal government's law enforcement agencies, 
including the Department of Justice and the Department of 
Homeland Security, are best positioned to detect and divert 
controlled substances at our nation's borders. Limiting entry 
of controlled substances into the United States is not the role 
of the Department of Health and Human Services, or our public 
health agencies like the Centers for Disease Control and 
Prevention.
    This legislation was not subject to a hearing before the 
Energy and Commerce Committee. As a result, the Committee and 
the public have not had a sufficient opportunity to fully 
analyze the implications for the policy. However, this 
legislation could clearly have far-reaching and detrimental 
consequences by vastly expanding the authority of the Secretary 
to unilaterally deny entry to persons or property into the 
United States.

                                        Frank Pallone, Jr.,
                                                    Ranking Member.

                                  [all]