CDC Issues Mandate for Mask Use in Travel

CDC Issues Mandate for Mask Use in Travel

February 01, 2021  | Jeff Davis

Late on the night of January 29, the Centers for Disease Control issued a nationwide mandate requiring passengers and crew on all U.S. travel “conveyances,” and in all “transportation hubs,” to wear masks. The order takes effect at one minute before midnight tonight.

Over the weekend, the U.S. Department of Transportation issued its own FAQ document related to the mask mandate, and the TSA issued its own statement as to how it will implement the order.

Coming from the CDC as it does, the order is grounded in public health law, not any transportation law. The heart of the CDC order is:

…a person must wear a mask while boarding, disembarking, and traveling on any conveyance into or within the United States. A person must also wear a mask at any transportation hub that provides transportation within the United States.

Conveyance operators traveling into or within the United States may transport only persons wearing masks and must use best efforts to ensure that masks are worn when embarking, disembarking, and throughout the duration of travel. 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.

The rule uses a definition of “conveyance” found in public health regulations (42 CR 70.1), “Conveyance means an aircraft, train, road vehicle, vessel (as defined in this section) or other means of transport, including military.” Then, the sub-definition of “vessel,” which is “Vessel means any passenger-carrying, cargo, or towing vessel exclusive of: Fishing boats including those used for shell-fishing; Tugs which operate only locally in specific harbors and adjacent waters; Barges without means of self-propulsion; Construction-equipment boats and dredges; and Sand and gravel dredging and handling boats.”

The rule then exempts certain types of conveyances from the mask mandate: “Private conveyances operated solely for personal, non-commercial use; Commercial motor vehicles or trucks as these terms are defined in 49 CFR 390.5, if the driver is the sole occupant of the vehicle or truck; Conveyances operated or chartered by the U.S. military services provided that such conveyance operators observe Department of Defense precautions to prevent the transmission of COVID-19 that are equivalent to the precautions in this Order.”

The order creates a new definition of “transportation hub,” being “Transportation hub means 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.”

Any state or locality that is already enforcing a mask mandate is generally exempt from the federal mandate:

This Order shall not apply within any state, locality, territory, or area under the jurisdiction of a Tribe, where the controlling governmental authority: (1) requires a person to wear a mask on conveyances; (2) requires a person to wear a mask at transportation hubs; and (3) requires conveyances to transport only persons wearing masks. Those requirements must provide the same level of public health protection as—or greater protection than—the requirements listed herein.

In addition, the order has a blanket exemption for children under 2 years old, the disabled for whom mask-wearing is unsafe because of an ADA-defined illness, or workers for who mask-wearing would violate workplace safety rules. And there is a long list of common-sense times when individuals can temporarily remove their masks: while eating and drinking, talking to deaf people, wearing oxygen masks, getting the TSA to verify one’s identity etc.

The TSA announced that it will be enforcing the mask mandate in airports, but their announcement also stated that they will be enforcing the mandate on all modes: “TSA will require individuals to wear a mask at TSA airport screening checkpoints and throughout the commercial and public transportation systems.” While TSA can easily enforce the mandate at airports, and might be able to do some enforcement at major train stations in big cities, they just don’t have the manpower to do much else in surface transportation. (Per their most recent budget estimates, in fiscal 2020, TSA had 51,637 full-time equivalent personnel in aviation screening and operations. The number of FTEs in all their surface transportation programs was 737. So the odds of the TSA being in-place, in-person to enforce the mask mandate at the Camden, South Carolina Amtrak station or on one of the RapidRide transit buses in Rapid City, South Dakota are pretty slim.)

Practically speaking, outside of airports, transportation providers are expected to enforce the mandate themselves. Operators of conveyances and transportation hubs must use”best efforts” to enforce the rule, which include only admitting persons wearing masks, instructing people that failure to wear a mask violates federal law, monitoring people who are onboard the conveyance or inside the hub for compliance, and removing people who refuse to comply.

Legally speaking, the applicability of the order to intrastate transportation (like most mass transit) is in a gray area. The only legal authority for the order that is cited by the order itself is 42 U.S.C. §264(a), which is the general authority for the Surgeon General to make regulations to “prevent the introduction, transmission or spread of communicable diseases from foreign countries in to the States or possessions, or from one State or possession into any other State or possession.” There’s nothing specifically in that law authorizing the federal government to take steps to stop disease transmission within a state, which is a big reason why the CDC isn’t the entity that sets maximum seating sizes in restaurants or gyms or requires any mask mandates when people walk down the streets in their local communities.

The “background” section of the order claims that intrastate transportation inherently has interstate effects:

Intrastate transmission of the virus has led to—and continues to lead to—interstate and international spread of the virus, particularly on public conveyances and in travel hubs, where passengers who may themselves be traveling only within their state or territory commonly interact with others traveling between states or territories or internationally. Some states, territories, Tribes, and local public health authorities have imposed mask-wearing requirements within their jurisdictional boundaries to protect public health. Any state or territory without sufficient mask-wearing requirements for transportation systems within its jurisdiction has not taken adequate measures to prevent the spread of COVID-19 from such state or territory to any other state or territory. That determination is based on, inter alia, the rapid and continuing transmission of the virus across all states and territories and across most of the world. Furthermore, given how interconnected most transportation systems are across the nation and the world, local transmission can grow even more quickly into interstate and international transmission when infected persons travel on non-personal conveyances without wearing a mask and with others who are not wearing masks.

Therefore, I have determined that the mask-wearing requirements in this Order are reasonably necessary to prevent the further introduction, transmission, or spread of COVID-19 into the United States and among the states and territories. Individuals traveling into or departing from the United States, traveling interstate, or traveling entirely intrastate, conveyance operators that transport such individuals, and transportation hub operators that facilitate such transportation, must comply with the mask-wearing requirements set forth in this Order.

If the applicability of the federal mass mandate to strictly intrastate transportation like mass transit were to be challenged in federal court, it would make an interesting lawsuit, where the CDC would have to argue that it is not, in fact, arbitrary for the federal government to ban two maskless people sharing an Uber with the windows down going a mile down a local street while, at the same time, the federal government does not prohibit “super-spreader” indoor events with mass, maskless attendance.

However, getting a plaintiff the standing to challenge the intrastate mask mandate wouldn’t be easy. Plaintiffs need to show some kind of actual harm in order to get standing to go to court, and footnote 33 in the order states that they probably won’t put anyone in a position where they could get the standing necessary to challenge the rule in court: “While this Order may be enforced and CDC reserves the right to enforce through criminal penalties, CDC does not intend to rely primarily on these criminal penalties but instead strongly encourages and anticipates widespread voluntary compliance as well as support from other federal agencies in implementing additional civil measures enforcing the provisions of this Order, to the extent permitted by law and consistent with President Biden’s Executive Order of January 21, 2021 (Promoting COVID-19 Safety in Domestic and International Travel).”

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