TSA Issues Security Directive Ordering Masks to be Worn on Public Transportation Systems

The Biden Administration has issued a number of directives to public transportation providers, including operators of passenger rail service, directing operating entities to require that all persons working in their systems or using their services wear masks to prevent the spread of COVID-19.  While these directives provide that any individual who fails to comply with the mask mandate will violate federal law, the directives make public transportation providers responsible for requiring masks, but do not specify a mechanism for enforcing those requirements.  As the directives stand as of the date of this blog entry, the policy goal is clear and the directives identify various means for penalizing public transportation providers who fail to adhere to the requirements – but they do not specify an enforcement regime. We expect TSA and FTA will issue further guidance, so watch this space.

On January 21, 2021, President Biden issued an Executive Order titled, “Promoting COVID-19 Safety in Domestic and International Travel.”  Exec. Order No. 13998, 86 Fed.Reg. 7205 (Jan. 21, 2021) (Executive Order).  The Executive Order directed the Secretary of Homeland Security and Administrator of the Transportation Security Administration (TSA) to “immediately take action, to the extent appropriate and consistent with applicable law, to require masks to be worn in compliance with Centers for Disease Control (CDC) guidelines” trains, intercity bus services and all forms of public transit.  The CDC, in turn, issued an Order on January 29, 2021, requiring masks while on conveyances and at transportation hubs.  Centers for Disease Control and Prevention Department of Health and Human Services, Order Under Section 361 of the Public Health Service Act (42 U.S.C. 264) and 42 Code of Federal Regulations 70.2, 71.31(b), 71.32(b), Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs (“CDC Order”).  The CDC Order requires the following:

Operators of transportation hubs must use best efforts to ensure that any person entering or on the premises of the transportation hub wears a mask. Best efforts include:

  • allowing entry only to those persons who wear masks;
  • instructing persons that Federal law requires wearing a mask in the transportation hub and failure to comply constitutes a violation of Federal law;
  • monitoring persons on the premises of the transportation hub for anyone who is not wearing a mask and seeking compliance from such persons;
  • at the earliest opportunity, removing any person who refuses to comply from the premises of the transportation hub;
  • providing persons with prominent and adequate notice to facilitate awareness and compliance with the requirement of this Order to wear a mask;
  • best practices may include, if feasible, advance notifications on digital platforms, such as on apps, websites, or email; posted signage in multiple languages with illustrations; printing the requirement on transit tickets; or other methods as appropriate.

The Order defines transportation hub as “any airport, bus terminal, marina, seaport or other port, subway station, terminal (including any fixed facility at which passengers are picked-up or discharged), train station, U.S. port of entry, or any other location that provides transportation subject to the jurisdiction of the United States.” 

The CDC order specifies that “[t]his Order is not a rule within the meaning of the Administrative Procedures Act,” but is an “emergency action” taken consistent with numerous U.S. Code and CFR sections cited therein.  The CDC order cites to several different sections of the U.S. Code and the CFR which provide for the authority of TSA to take various actions. 

Following on the heels of the CDC’s order, on January 27, 2021, the Acting Secretary of Homeland Security determined a national emergency existed requiring the TSA to issue a Security Directive (SD) “to implement the Executive Order and enforce the related [CDC] Order.”  The SD requires Owner/Operators, as defined in 49 CFR 1500.3, and including passenger rail providers, to do the following:

  1. Notify passengers with prominent and adequate notice of the mask requirements to facilitate awareness and compliance 
  2. Require that individuals wear a mask
  3. Ensure that direct employees and contractor employees wear a mask at all times when in conveyances or in or around transpo1iation facilities under their control

The SD includes exemptions for circumstances when masks need not be worn (e.g. eating, drinking, when needed for id verification) and exempts children under the age of 2, persons with disabilities who cannot wear a mask, or persons for whom wearing a mask “would create a risk to workplace health, safety, or job duty as determined by the relevant workplace safety guidelines or federal regulations.” 

The SD requires Owner/Operators to “establish procedures to manage situations with persons who refuse to comply with the requirement to wear a mask.”  “At a minimum, these procedures must ensure that if an individual refuses to comply with an instruction given by the owner/operator with respect to wearing a mask, the owner/operator must: 1.) Deny boarding; 2.) Make best efforts to disembark the individual as soon as practicable; or 3.) Make best efforts to remove the individual from the transportation hub/facility.”  The SD also specifies that “if an individual's refusal to comply with the mask requirement constitutes a significant security concern, the owner/operator must report the incident to TSA’s Transportation Security Operations Center (TSOC).”

TSA “supports enforcement of the [CDC] Order mandating masks issued on January 29, 2021,” but does not designate specific means of enforcement in the SD.  The SD sets out the above-mentioned procedures for “managing” situations when a person refuses to wear a mask but does not specify who precisely shall be doing the enforcement if an individual fails to comply with the mask-wearing requirement. 

Finally, on February 9, 2021, the Federal Transit Administration issued an amendment to its Master Agreement governing the terms of grants for federal assistance to public transportation providers, incorporating the requirements of the CDC Order as a “Special Provision for Promoting COVID-19 Safety.”  Recipients of FTA funding must now agree to adhere to the terms of the CDC Order or risk “FTA enforcement action,” including withholding funds, for non-compliance. 

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