Biden Signs Transportation Mask Mandate, but USDOT Must Actually Implement It

Yesterday, President Biden signed a new executive order directing federal agencies to “require masks to be worn in compliance with CDC guidelines” in various modes of transportation.

However, Biden’s order is not self-enforcing. Actual mask mandates must be issued by the Department of Transportation, the Federal Aviation Administration, the Coast Guard, and other agencies “that have relevant regulatory authority” and can only be carried out “to the extent appropriate and consistent with applicable law.” And some of those will show the limits of the reach of federal law and regulatory authority.

The order states that it applies to travel in or on:

  1. airports;
  2. commercial aircraft;
  3. trains (which, legally, does not include subways or mass transit light rail – see (vi));
  4. public maritime vessels, including ferries;
  5. intercity bus services; and
  6. all forms of public transportation as defined in section 5302 of title 49, United States Code.

The presence of mass transit as item (vi) was a bit of a surprise. During the campaign, Biden’s promised mask mandate only applied to interstate transportation, which made sense, because that is the area where the federal government has general police power to regulate and to ensure public safety. Intrastate transportation, like most mass transit, is not an area where the federal government generally has regulatory power.

As we have seen during the COVID pandemic, the federal government does not have the power to force you to wear a mask as you walk down your local street. That power is reserved for state governors, and is sometimes delegated by state law to local government. If you take a mass transit bus down that same street, the federal government doesn’t have any inherent power to make you wear a mask there, either. Not unless you cross state lines and it becomes interstate commerce.

This lack of federal regulatory power over local mass transit is why Congress had to use financial leverage to force states to set up their own safety regulatory bodies to oversee the safety of rail mass transit systems in their state. (The main exception is the DC-area WMATA system, both because it is an interstate compact and because the District of Columbia is a federal responsibility. And commuter rail that crosses state lines is another gray area.)

For example, federal law declares that “The United States Government has exclusive sovereignty of airspace of the United States” and that the FAA Administrator (not the Secretary) “shall promote safe flight of civil aircraft in air commerce by prescribing…regulations and minimum standards for other practices, methods, and procedure the Administrator finds necessary for safety in air commerce.” The FAA Administrator can thus issue emergency regulations requiring passengers on aircraft in US airspace to wear masks.

Similarly, federal law gives the Secretary of Transportation broad authority to “prescribe regulations and issue orders for every area of railroad safety.” Another law gives the Secretary of Homeland Security (as delegated to the Coast Guard) “general superintendence over the merchant marine of the United States and of merchant marine personnel.”

In all those instances, where the federal government has actual regulatory power, legally binding mask mandates could be issued quickly.

For mass transit, where the federal power is limited to the writing of checks under the general welfare clause of the Constitution, the federal government cannot mandate – it can only add conditions to future federal funding requiring recipients to do x, y or z in exchange for the money. This is both indirect and time-consuming.

Congress has been writing checks to subsidize mass transit for over 50 years, but only since 2012 have they started adding safety-related conditions. The 2012 safety law required each transit provider receiving federal funds to have its own transit safety plan, and required state governments to set up safety regulation offices to oversee the transit providers and make sure they were adhering to the plans. It has been suggested (by the AFL-CIO and others) that FTA might be able to require a mask mandate as part of these transit safety plans – an indirect method of requiring mask use, and slow, but possibly effective.

However, the final rule establishing the transit agency safety plans wasn’t published until July 2018 and took effect in July 2019. The initial compliance date was going to be July 2020.

But then COVID-19 happened, and since then, the Federal Transit Administration has postponed the compliance deadline for the safety law (twice—in April 2020 they postponed the deadline to December 31, 2020, and then in the middle of last month they postponed it again until July 21, 2021). The justification was:

FTA acknowledges that transit agencies continue to experience substantial operational challenges due to the COVID-19 public health emergency, including reduced or suspended service, and reduced ridership and financial resources. COVID-19 case numbers are high or rising across the Nation, resulting in a foreseeable continuing need for transit providers to focus resources to address the COVID-19 public health emergency. FTA recognizes that these challenges seriously impact the ability of many transit agencies to meet the compliance and certification requirements of 49 U.S.C. § 5329(d)(1) and 49 CFR Part 673 by December 31, 2020. This Notice is to advise FTA recipients and subrecipients subject to the PTASP regulation that FTA will refrain from taking enforcement action pursuant to 49 U.S.C. § 5329(g) and the FTA Master Agreement (26) (October 1, 2019) until July 21, 2021, if those FTA recipients and subrecipients are unable to certify that they have established a compliant Agency Safety Plan.

COVID has been so problematic for transit providers that FTA won’t enforce the safety plan rules while COVID is happening—but amending and enforcing the safety plan rules seems to be the only possible way that the federal government could issue a mask mandate for mass transit. Conundrum! It will be interesting to see how DOT implements this part of President Biden’s order.

The executive order is also orders HHS, DOT, and others to review the January 12 CDC order requiring all incoming air passengers to have a negative COVID test and assess the following:

(A)  the timing and types of COVID-19 tests that should satisfy the negative test requirement, including consideration of additional testing immediately prior to departure;
(B)  the proof of test results that travelers should be required to provide;
(C)  the feasibility of implementing alternative and sufficiently protective public health measures, such as testing, self-quarantine, and self-isolation on arrival, for travelers entering the United States from countries where COVID-19 tests are inaccessible, particularly where such inaccessibility of tests would affect the ability of United States citizens and lawful permanent residents to return to the United States; and
(D)  measures to prevent fraud.

The executive order also directs federal agencies to come up with better public health measures at land and sea ports of entry.

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