United States to impose COVID-19 testing requirements on air … – Dentons

On January 26, 2021, the United States imposed a pre-departure COVID-19 test requirement (the Prior Pre-Departure COVID-19 Test Requirement) requiring all air passengers travelling to the United States from a foreign country to present either:
The Prior Pre-Departure COVID-19 Test Requirement was rescinded on June 10, 2022. However, due to a reported increase in COVID-19 cases in the People’s Republic of China, the Centers for Disease Control and Prevention (CDC) has recently imposed new COVID-19 test requirements on certain travellers. 
On December 30, 2022, the CDC issued an Order (the CDC Order), which will prohibit the boarding of certain passengers who have been present in the People’s Republic of China, the Special Administrative Region of Hong Kong, or the Special Administrative Region of Macau (collectively, China) unless they present either: (a) a negative result for a qualifying COVID-19 test, or (b) sufficient documentation of having recovered from COVID-19. Air passengers will also be required to confirm that the information they present is true by means of an attestation. The CDC Order will become effective for flights departing at or after 12:01 a.m. EST on January 5, 2023.
Further details regarding the CDC Order appear below.
As mentioned above, the CDC Order becomes effective on January 5, 2023. As of that date, the CDC Order will prohibit the boarding of passengers two years of age or older on an itinerary that includes the United States (regardless of whether the U.S. is the final destination or an intermediate stop) on:
The CDC Order applies regardless of citizenship or vaccination status. However, please note that, in addition to children under the age of two, the CDC Order excludes:
Although the CDC may list additional airports at a later date, at the present time, airports designated under the CDC Order (collectively, the Designated Airports) include: (a) Incheon International Airport (Seoul), (b) Toronto Pearson International Airport, and (c) Vancouver International Airport.
In order to comply with the CDC Order, the above passengers will be required to present paper or digital documentation of one of the following requirements:
Passengers must retain paper or digital documentation of the negative Qualifying Test result or Documentation of Recovery presented to the airline or other aircraft operator. They must also produce their Qualifying Test result or Documentation of Recovery upon request by any US government official or cooperating state or local public health authority.
Passengers must also provide an attestation to the airline or other aircraft operator, of having received a negative Qualifying Test result or of having met the requirements for Documentation of Recovery. A parent or other authorized individual may present the required documentation on behalf of a passenger aged two to 17 years. An authorized individual may also act on behalf of any passenger who is unable to act on his or her own behalf (e.g., by reason of age, or physical or mental impairment). Airlines and other aircraft operators must retain a copy of each passenger’s attestation for two years.
According to the CDC Order, a Qualifying Test is defined as a viral detection test for current infection with SARS-CoV-2 (i.e., a nucleic acid amplification test (NAAT) or a viral antigen test). The test must be cleared, approved, or issued an emergency use authorization by the U.S. Food and Drug Administration, or granted marketing authorization by the relevant national authority, for the detection of SARS-CoV-2. 
The requirements for a Qualifying Test include:
As mentioned above, Documentation of Recovery includes either:
If a passenger presents a letter from a licensed healthcare provider or public health official, this letter must:
The following categories of individuals and organizations are specifically excepted from the requirements of the CDC Order:
The CDC Order sets out specific requirements for both: (a) airlines and other aircraft operators; and (b) aircraft passengers. Failure comply with these requirements may result in criminal penalties.
Any airline or other aircraft operator boarding passengers subject to the requirements of the CDC Order is required to do the following:
Any aircraft passenger subject to the requirements of the CDC Order is required to do the following:
Any airline, aircraft operator, or aircraft passenger who fails to comply with the above requirements may be subject to criminal penalties under 42 U.S.C. §271 and 42 C.F.R. §71.2, in conjunction with 18 U.S.C. §3559 and 18 U.S.C. 3571. In the case of an aircraft passenger, willfully giving false or misleading information to the government may also result in criminal penalties under 18 U.S.C. §1001.
For more information on this topic, please reach out to the authors, Henry J. Chang and Jonathan Mor.

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