On January 21, 2021, President Biden signed an executive order directing federal agencies to “require masks to be worn in compliance with CDC guidelines” in various modes of transportation, including public transportation.
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.”
The order states that it applies to travel in or on:
- commercial aircraft;
- trains (which, legally, does not include subways or mass transit light rail – see (vi));
- public maritime vessels, including ferries;
- intercity bus services; and
- all forms of public transportation as defined in section 5302 of title 49, United States Code.
In all those instances, where the federal government has actual regulatory power, legally binding mask mandates could be issued quickly, while Congress may use financial leverage to force states to set up their own safety regulatory bodies to oversee the safety on rail mass transit systems in their state to enforce regulations outside the federal jurisdiction.
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. COVID has been so problematic for transit providers that FTA won’t enforce the safety plan rules while COVID is happening.