[Federal Register Volume 86, Number 47 (Friday, March 12, 2021)]
[Rules and Regulations]
[Pages 13971-13972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05241]



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 Rules and Regulations
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  Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Rules 
and Regulations  

[[Page 13971]]



DEPARTMENT OF HOMELAND SECURITY

6 CFR Chapter I

49 CFR Chapter XII

[DHS Docket No. DHS-2021-0008]


Ratification of Security Directive

AGENCY: Office of Strategy, Policy, and Plans, Department of Homeland 
Security (DHS).

ACTION: Notification of ratification of directive.

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SUMMARY: DHS is publishing official notification that the 
Transportation Security Oversight Board (TSOB) has ratified a 
Transportation Security Administration (TSA) surface transportation 
security directive (SD) requiring mask wearing on public transportation 
and at transportation hubs to protect the safety and security of the 
traveling public and the transportation system. As a consequence of the 
TSOB's actions, described below, the SD will remain in effect until at 
least May 11, 2021, and may further be extended by the TSA 
Administrator to the extent described below.

DATES: The ratification was executed on February 28, 2021 and took 
effect on that date. The SD is in effect until at least May 11, 2021.

FOR FURTHER INFORMATION CONTACT: John D. Cohen, DHS Coordinator for 
Counterterrorism and Assistant Secretary for Counterterrorism and 
Threat Prevention, DHS Office of Strategy, Policy, and Plans, (202) 
202-282-9708, [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

A. Executive Order, DHS Determination, and Centers for Disease Control 
and Prevention (CDC) Order

    On January 21, 2021, in recognition of the continuing threat to 
health, safety, and economic and national security posed by COVID-19, 
including the new virus variants, the President issued Executive Order 
13,998, Promoting COVID-19 Safety in Domestic and International 
Travel.\1\ The Executive Order directs the Secretary of Homeland 
Security, in coordination with other federal officials and ``through 
the Administrator of the Transportation Security Administration,'' to 
``immediately take action, to the extent appropriate and consistent 
with applicable law, to require masks to be worn in compliance with CDC 
guidelines'' in or on airports, commercial aircraft, trains, public 
maritime vessels, intercity bus services, and all forms of public 
transportation.\2\ The Executive Order focuses on a nationwide, ``whole 
of government'' approach to addressing security and safety concerns 
presented by the continued transmission of COVID-19 through the 
transportation system.
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    \1\ 86 FR 7205 (published Jan. 26, 2021).
    \2\ Id.
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    On January 27, 2021, the Acting Secretary of Homeland Security 
issued a Determination of a National Emergency Requiring Actions to 
Protect the Safety of Americans Using and Employed by the 
Transportation System.\3\ The Acting Secretary's determination directs 
TSA to take actions consistent with its statutory authorities ``to 
implement the Executive Order to promote safety in and secure the 
transportation system.'' In particular, the determination directs TSA 
to support ``the CDC in the enforcement of any orders or other 
requirements necessary to protect the transportation system, including 
passengers and employees, from COVID-19 and to mitigate the spread of 
COVID-19 through the transportation system.''
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    \3\ Acting Secretary David P. Pekoske, Determination of a 
National Emergency Requiring Actions to Protect the Safety of 
Americans Using and Employed by the Transportation System (Jan. 27, 
2021), available at https://www.dhs.gov/publication/determination-national-emergency-requiring-actions-protect-safety-americans-using-and (accessed Feb. 22, 2021).
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    On January 29, 2021, the Director of the CDC's Division of Global 
Migration and Quarantine issued a Notice and Order titled Requirement 
for Persons to Wear Masks While on Conveyances and at Transportation 
Hubs.\4\ The CDC Order, effective February 1, 2021, provides that it 
``shall be enforced by the Transportation Security Administration under 
appropriate statutory and regulatory authorities'' and ``further 
enforced by other federal authorities'' as well as ``cooperating state 
and local authorities.'' \5\
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    \4\ 86 FR 8025 (Feb. 3, 2021).
    \5\ Id. at 8030.
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B. TSA Security Directive 1582/84-21-01

    On January 31, 2021, the Senior Official Performing the Duties of 
the TSA Administrator issued Security Directive 1582/84-21-01 to 
surface transportation owners and operators requiring mask wearing on 
public transportation, passenger rail, and bus conveyances, and at 
transportation hubs to protect the safety and security of the traveling 
public and the transportation system.\6\ The SD, which is available in 
the docket for this notice at https://www.regulations.gov/, became 
effective on February 1, 2021, and is scheduled to expire on May 11, 
2021. Neither the Acting Secretary's national emergency determination 
nor the CDC Order includes an expiration date and they remain in effect 
based on specific public health conditions and in consideration of the 
public health emergency.
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    \6\ See 49 U.S.C. 114(l)(2)(A) (authorizing TSA to issue 
emergency regulations or security directives without providing 
notice or public comment where ``the Administrator determines that 
the regulation must be issued immediately in order to protect 
transportation security. . . .''.).
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    The SD implements the Executive Order, the Acting Secretary of 
Homeland Security's national emergency determination, and the CDC Order 
by requiring mask wearing on surface transportation conveyances and at 
transportation hubs. The directive mandates measures to secure and 
promote safety in the transportation system, including passengers and 
employees, by mitigating against the further spread of COVID-19. Under 
the SD, covered owners and operators must: (1) Provide prominent and 
adequate notice of the mask requirement to facilitate awareness and 
compliance; (2) require individuals to wear a mask; and (3) report 
incidents of non-compliance to TSA. Consistent with the CDC Order, the 
directive permits limited exemptions from the requirement to wear a 
mask in the transportation system and does not preempt state or local 
requirements that are the same or

[[Page 13972]]

more protective of public health than TSA's mandatory measures.

II. TSOB Ratification

    The Aviation and Transportation Security Act (the Act) establishes 
the TSOB and provides that the TSOB shall ``review and ratify or 
disapprove'' security directives issued by TSA under 49 U.S.C. 
114(l)(2).\7\ The Act further states that such directives ``shall 
remain effective for a period not to exceed 90 days unless ratified or 
disapproved by the Board or rescinded by the Administrator.'' \8\
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    \7\ 49 U.S.C. 115(a) and (c)(1).
    \8\ Id. 114(l)(2)(B).
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    Pursuant to these authorities, the Senior Official Performing the 
Duties of the Deputy Secretary of Homeland Security, in his capacity as 
chairman of the TSOB, requested TSOB review of the SD.\9\ On February 
28, 2021, the TSOB ratified TSA Security Directive 1582/84-21-01. As 
part of this ratification, the TSOB also ratified any extension of the 
SD for a period no longer than the period of time that the Secretary's 
national emergency determination and the CDC Order remain in effect 
should the TSA Administrator determine that such an extension is 
warranted to support implementation of the Executive Order, the 
national emergency determination, and the CDC order.
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    \9\ DHS Delegation No. 7071.1, Delegation to the Deputy 
Secretary to Chair the Transportation Security Oversight Board (Apr. 
2, 2007).
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    The SD is available in the docket for this notice at https://www.regulations.gov/.

David P. Pekoske,
Senior Official Performing the Duties of Deputy Secretary of Homeland 
Security & Chairman of the Transportation Security Oversight Board, 
U.S. Department of Homeland Security.
[FR Doc. 2021-05241 Filed 3-10-21; 4:15 pm]
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