LETTER: Hasbrouck On CDC Data-Collection Rules

Edward Hasbrouck, a consultant to The Identity Project, a program of the First Amendment Project, submitted the following letter in response to an article this week. The Beat reached out to The U.S. Centers for Disease Control and Prevention to clarify its statement and rule status and will update the original story with its response.

Thanks for your story, "Airlines: Industry Ill-Equipped To Collect More Traveler Data For Contact Tracing." You might find the story I wrote about this last month of interest.

You say that, "A CDC official this month told The Beat that the interim final rule was not yet finalized, as it goes 'through the legal process.' The official did not give an expected date for that process' conclusion."

The changes to the Code of Federal Regulations made by an "interim final rule" are effective immediately. That's what the "final" in "interim final rule" means. So I'm not sure what the CDC would have meant by saying the rule wasn't yet finalized. By definition, it was finalized.

An agency like the CDC may later modify an "interim final rule" (or any final rule) in response to comments or for other reasons. But it isn't required to do so. In theory, someone could sue under the Administrative Procedure Act to force an agency to publish an assessment of comments received in response to the interim final rule. But that would be rare, and courts typically wouldn't consider such a complaint unless years had passed.

Once an interim final rule is issued, normally nothing further happens in the docket, and it remains in place for years. If anything further is done, it is typically just a pro forma follow-up notice brushing off the comments and making no changes to the interim final rule.

These aren't typical times, and this isn't a typical rule. But it's important to understand that these regulations are now in effect.

Part of the problem with these CDC rules, as with many U.S. Department of Homeland Security rules, is that the rule (which as a "regulation" must be public) requires airlines, other travel companies and the public to comply with subsequent demands from government agencies that can be made through orders or directives to airlines that are not themselves necessarily available to the public.

So it may be that, although the rule is in effect, CDC has held off (for the time being, or to some degree) on issuing orders to airlines.

The relevant language in the rule is, "any airline with a flight arriving into the United States, including any intermediate stops between the flight’s origin and final destination, shall collect and, within 24 hours of an order by the Director, transmit to the Director the data elements in paragraph (e) of this section, in a format acceptable to the Director."

Best regards,

Edward Hasbrouck
Consultant to The Identity Project (