Emergency Order Requiring Face Mask Use in Railroad Operations, 11888-11891 [2021-04233]

Download as PDF 11888 § 25.170 ■ ■ Federal Register / Vol. 86, No. 38 / Monday, March 1, 2021 / Rules and Regulations [Removed] 7. Remove § 25.170. 8. Revise § 25.171 to read as follows: § 25.171 Space station point of contact reporting requirements. (a) Annual report. On June 30 of each year, a space station licensee or market access recipient must provide a current listing of the names, titles, addresses, email addresses, and telephone numbers of the points of contact for resolution of interference problems and for emergency response. Contact personnel should include those responsible for resolution of short-term, immediate interference problems at the system control center, and those responsible for long-term engineering and technical design issues. (b) Updated information. If a space station licensee or market access recipient point of contact information changes, the space station licensee or market access recipient must file the updated information within 10 days of the change. (c) Electronic filing. Filings under paragraphs (a) or (b) of this section must be made electronically in the Commission’s International Bureau Filing System (IBFS) in the ‘‘Other Filings’’ tab of the station’s current authorization file. ■ 9. Amend § 25.172 by revising paragraph (a)(1) to read as follows: § 25.172 Requirements for reporting space station control arrangements. (a) * * * (1) The information required by § 25.171(a). * * * * * Editorial Note: The Office of the Federal Register received this document on December 23, 2020. [FR Doc. 2020–28907 Filed 2–26–21; 8:45 am] BILLING CODE 6712–01–P DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Parts 209 and 211 [Emergency Order No. 32, Notice No. 1] Emergency Order Requiring Face Mask Use in Railroad Operations To help prevent the spread of coronavirus disease 2019 (COVID–19), the Federal Railroad Administration (FRA) is issuing this emergency order (E.O.) to require compliance with the mask requirements of the Order of the Centers for Disease Control and Prevention (CDC), Requirement for SUMMARY: VerDate Sep<11>2014 16:15 Feb 26, 2021 Jkt 253001 Persons to Wear Masks While on Conveyances and at Transportation Hubs. This E.O. also implements Promoting COVID–19 Safety in Domestic and International Travel, issued on January 21, 2021, requiring masks to be worn in or on airports, commercial aircraft, and various modes of surface transportation, including trains. Specifically, this E.O. addresses requirements for face mask use with respect to all freight rail operations and portions of each passenger rail operation under FRA’s safety jurisdiction. DATES: This emergency order is effective March 1, 2021. FOR FURTHER INFORMATION CONTACT: Mark Patterson, Director, Office of Data Analysis and Program Support, at (202) 493–6282 or mark.patterson@dot.gov; Elizabeth Gross, Attorney Adviser, Office of the Chief Counsel, at (202) 493–1342 or elizabeth.gross@dot.gov; or Veronica Chittim, Attorney Adviser, Office of the Chief Counsel, at (202) 493–0273 or veronica.chittim@dot.gov. SUPPLEMENTARY INFORMATION: Introduction FRA is issuing this E.O. to implement Executive Order 13998,1 which directs the Secretary of Transportation to take action to require masks to be worn in compliance with CDC guidelines in or on trains.2 On January 31, 2021, the Transportation Security Administration (TSA) issued Security Directive (SD) 1582/84–21–01, Security Measures— Face Mask Requirements (TSA SD), to implement Executive Order 13998 and to enforce the CDC Order with respect to conveyances and transportation facilities used in various modes of surface transportation, including passenger rail. On February 12, 2021, the Secretary of Transportation issued an Action Memorandum to further USDOT’s efforts to implement the President’s Executive Order 13998. Finding that COVID–19 and its variants continue to present unprecedented challenges to the health of the traveling public in all modes of transportation, and that the wearing of masks on all modes of transportation can mitigate the risk of travelers spreading COVID–19 and can instill safety and confidence in transportation systems, the Secretary directed FRA to take action to support 1 86 FR 7205 (Jan. 26, 2021). example, this E.O. applies to all persons in or on a freight train, locomotive, high-rail vehicle, crew transportation vehicle, or in a railroad transportation facility, terminal, yard, storage facility, yard office, crew room, maintenance shop, and other areas regularly occupied by personnel engaged in railroad operations. 2 For PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 and carry out enforcement of the CDC Order with respect to transportation entities subject to its jurisdiction. In issuing this E.O., FRA is exercising its emergency railroad safety authority to the extent necessary to require mask wearing in accordance with the CDC Order and implement Executive Order 13998 with respect to freight rail operations and those portions of passenger rail operations 3 not already covered by the TSA SD. FRA is not exercising its authority over any other aspect of the COVID–19 pandemic and does not otherwise intend by this E.O. to affect working conditions for employees and contractors engaged in railroad operations.4 Authority Authority to enforce Federal railroad safety laws has been delegated by the U.S. Secretary of Transportation to the Administrator of FRA. 49 U.S.C. 103; 49 CFR 1.89(e) and internal delegations. Railroads are subject to FRA’s safety jurisdiction under the Federal railroad safety laws. 49 U.S.C. 20101, 20103. FRA is authorized to issue emergency orders where an unsafe condition or practice ‘‘causes an emergency situation involving a hazard of death, personal injury, or significant harm to the environment.’’ 49 U.S.C. 20104. Emergency orders may immediately impose ‘‘restrictions and prohibitions . . . that may be necessary to abate the situation.’’ Id. COVID–19 Pandemic Due to the ongoing COVID–19 pandemic, and to reduce the spread of COVID–19, President Biden issued Executive Order 13998, Promoting COVID–19 Safety in Domestic and International Travel, on January 21, 2021, requiring masks to be worn in airports, on commercial aircraft, and in various modes of surface transportation, 3 For an explanation of how FRA exercises its safety jurisdiction over passenger rail operations, see ‘‘FRA’s Policy on Jurisdiction Over Passenger Operations’’ in 49 CFR part 209, appendix A— Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws. 4 Nothing in this E.O. is intended to interfere with any applicable jurisdiction over COVID–19 issues in the workplace by the Occupational Safety and Health Administration. Additionally, FRA is not exercising its railroad safety authority over any COVID–19 issue other than requiring compliance with mask mandates in accordance with the CDC Order, nor is it exercising its jurisdiction over how a railroad decides to comply with the CDC Order and this E.O. For example, a railroad may not include any type of COVID–19 risk-based hazard analysis as part of its railroad system safety program under either 49 CFR part 270 (System Safety Program) or part 271 (Risk Reduction Program) in order to protect that analysis from discovery or use in litigation under either 49 CFR 270.105 or 49 CFR 271.11. E:\FR\FM\01MRR1.SGM 01MRR1 Federal Register / Vol. 86, No. 38 / Monday, March 1, 2021 / Rules and Regulations including rail. To implement Executive Order 13998, to require compliance with the public health standards set forth in the CDC Order,5 and due to the immediate need to ensure masks are worn appropriately in the railroad industry to prevent the spread of COVID–19, FRA has determined that an emergency situation involving a hazard of death and personal injury exists, and is issuing this E.O. pursuant to the authority of 49 U.S.C. 20101, 20104. FRA is authorized to promote safety in every area of railroad operations. 49 U.S.C. 20101, 20103.6 The failure to wear masks as required by the CDC Order during railroad operations could impact railroad employees’ safety with respect to the risks of COVID–19. Consistent with these mandates and FRA’s authority, and after consultation with CDC and TSA, FRA is issuing this E.O. to require freight and passenger railroad carriers to comply with the mask 7 requirements of the CDC Order 8 during railroad operations subject to FRA’s railroad safety jurisdiction, except to the extent portions of the passenger railroad carrier’s operations are already covered by the TSA SD. For example, this E.O. applies to all persons in or on a freight train, locomotive, high-rail vehicle, crew transportation vehicle, or in a railroad transportation 5 See order under section 361 of the Public Health Service Act (42 U.S.C. 264) and 42 CFR 70.2, 71.31(b), 71.32(b); Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs (January 29, 2021). 86 FR 8025 (Feb. 3, 2021). 6 FRA’s exercise of its authority is consistent with prior, targeted regulatory action taken under 49 U.S.C. ch. 201 to protect employee exposure to health risks in the workplace. See, e.g., rules on occupational noise exposure (49 CFR part 227), camp cars as sleeping quarters (49 CFR part 228), locomotive cab sanitation and cab temperature (e.g., 49 CFR part 229). 7 Mask means a material covering the nose and mouth of the wearer, excluding face shields. The CDC has stated that a properly worn mask completely covers the nose and mouth of the wearer. A mask should be secured to the head, including with ties or ear loops. A mask should fit snugly but comfortably against the side of the face. Masks do not include face shields. Masks can be either manufactured or homemade and should be a solid piece of material without slits, exhalation valves, or punctures. Medical masks and N–95 respirators fulfill the requirements of this E.O. CDC guidance for attributes of acceptable masks in the context of this E.O. is available at https:// www.cdc.gov/quarantine/masks/mask-travelguidance.html. 8 The CDC Order states, ‘‘While this [CDC] 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).’’ 86 FR 8030. VerDate Sep<11>2014 16:15 Feb 26, 2021 Jkt 253001 facility, terminal, yard, storage facility, yard office, crew room, maintenance shop, and other areas regularly occupied by railroad personnel. While the CDC Order applies to all persons awaiting, boarding, or alighting a conveyance and while in a transportation hub,9 this E.O. does not apply to passengers or persons (including railroad carrier personnel) in or on a passenger train or in public areas of passenger railroad transportation hubs or facilities. The mask requirements in TSA SD 1582/84–21– 01, Security Measures—Face Mask Requirements, apply to passengers and such persons. There is currently a pandemic of respiratory disease, COVID–19, caused by a novel coronavirus (SARS–CoV–2). As of February 16, 2021, there have been over 108,000,000 confirmed cases of COVID–19 globally, resulting in nearly 2,400,000 deaths.10 As of February 14, 2021, there have been over 27,000,000 cases identified in the United States, and over 482,000 deaths due to the disease.11 According to the CDC, multiple new SARS–CoV–2 variants have emerged in recent weeks, including at least one with evidence of increased transmissibility.12 These variants seem to spread more easily and quickly than other variants, which may lead to more cases of COVID–19.13 An increase in the number of cases will put more strain on 9 86 FR 8025 (Feb. 3, 2021) (requiring face masks to be worn by all travelers while on public transportation). Your Guide to Masks, https:// www.cdc.gov/coronavirus/2019-ncov/preventgetting-sick/about-face-coverings.html (‘‘CDC recommends that people wear masks in public settings, at events and gatherings, and anywhere they will be around other people. Effective February 2, 2021, masks are required on planes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and in U.S. transportation hubs such as airports and stations.’’); Requirement for Face Masks on Public Transportation Conveyances and at Transportation Hubs, https://www.cdc.gov/coronavirus/2019-ncov/ travelers/face-masks-public-transportation.html (‘‘CDC has issued an order that requires face masks to be worn by all travelers while on public transportation (which includes all passengers and all personnel operating conveyances). People must wear masks that completely cover both the mouth and nose while awaiting, boarding, disembarking, or traveling on airplanes, ships, ferries, trains, subways, buses, taxis, and ride-shares as they are traveling into, within, or out of the United States and U.S. territories. People must also wear masks while at transportation hubs (e.g., airports, bus or ferry terminals, train and subway stations, seaports) and other locations where people board public transportation in the United States and U.S. territories.’’). 10 See https://covid19.who.int. 11 See https://covid.cdc.gov/covid-data-tracker/ #datatracker-home. 12 See https://www.cdc.gov/coronavirus/2019ncov/more/science-and-research/scientific-briefemerging-variants.html; https://www.cdc.gov/ coronavirus/2019-ncov/transmission/variant.html. 13 Id. PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 11889 health care resources, lead to more hospitalizations, and potentially lead to more deaths.14 While the CDC is closely monitoring these new variants to learn more about them, rigorous and increased compliance with public health mitigation strategies, such as the use of masks, is essential to limit the spread of the virus including any new variants.15 Additionally, controlling the spread of the virus by implementing public health measures such as mask wearing will help prevent new mutations, as viruses will not mutate well if they do not have the opportunity to replicate freely.16 In short, given these developments, it is more critical than ever that persons wear masks whenever possible to help prevent the spread of the virus that causes COVID– 19 and the further emergence of new variants. The CDC has also recently published research documenting a decline in COVID–19 hospitalization growth rates associated with statewide mask mandates.17 For a detailed discussion on how appropriate mask wearing helps reduce COVID–19 transmission, FRA refers readers to the CDC Order.18 Lack of Uniformity in Mask Wearing in Railroad Operations As of February 1, 2021, field observations 19 from FRA’s railroad safety inspectors regarding mask use on railroad property indicate that the critical practice of wearing a face mask is not consistent or uniform among railroad personnel. While some railroad carriers require their personnel to wear masks when working in an occupied locomotive cab and in rail facilities and shops, FRA has found this is not a universal requirement. FRA has observed railroad personnel often not wearing a face mask on railroad property, both in situations where social distancing is possible, and situations involving close proximity to others. FRA inspectors have also observed railroad personnel who did not put on a face mask when approached by the 14 Id. 15 https://www.cdc.gov/coronavirus/2019-ncov/ transmission/variant.html. 16 https://www.whitehouse.gov/briefing-room/ press-briefings/2021/02/03/press-briefing-whitehouse-covid-19-response-team-and-public-healthofficials/. 17 Joo H, Miller GF, Sunshine G, et al. Decline in COVID–19 Hospitalization Growth Rates Associated with Statewide Mask Mandates—10 States, March– October 2020, MMWR Morb Mortal Wkly Rep. ePub: 5 Feb. 2021. DOI: https://www.cdc.gov/ mmwr/volumes/70/wr/mm7006e2.htm. 18 86 FR 8025–8030. 19 These FRA field observations constitute ‘‘inspection’’ and ‘‘investigation’’ under 49 U.S.C. 20104(a)(1). E:\FR\FM\01MRR1.SGM 01MRR1 11890 Federal Register / Vol. 86, No. 38 / Monday, March 1, 2021 / Rules and Regulations inspectors to discuss matters of railroad safety. Necessity of Issuing This E.O. Taking into consideration the unique and exigent circumstances presented by the COVID–19 pandemic (particularly the recent emergence of variants with increased transmissibility), as well as the inconsistent use of masks observed by FRA inspectors through FRA inspection and investigation during railroad operations, FRA has determined that the COVID–19 pandemic has created an unsafe condition or practice involving a hazard of death or personal injury—not only to railroad personnel, but also to FRA and participating State 20 rail safety inspectors who interact with railroad personnel during the performance of their essential railroad safety duties. This E.O. is necessary to abate this emergency situation, by FRA requiring face mask use in accordance with the CDC Order, to ensure a minimum level of nationwide compliance,21 together with the TSA SD. Railroad carriers 22 and their personnel must comply with the mask-wearing requirements set forth in the CDC Order while engaged in railroad operations,23 including whenever they are in a transportation hub/facility 24 under the railroad 20 49 U.S.C. 20105. U.S.C. 20106(a)(1). 22 Railroad means any form of nonhighway ground transportation that runs on rails or electromagnetic guideways, including (i) commuter or other short-haul passenger service in a metropolitan or suburban area and commuter service that was operated by the Consolidated Rail Corporation on January 1, 1979; and (ii) high speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads; but does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation. Railroad carrier means a person providing railroad transportation. General railroad system of transportation has the same meaning as under 49 CFR part 209, appendix A—Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws. 23 Railroad operation means any activity which affects the movement of a train, locomotive, or other on-track equipment, singly or in combination with other equipment, on the track of a railroad. 24 Transportation hub/facility means any airport, bus terminal, marina, seaport or other port, subway stations, terminal (including any fixed facility at which passengers are picked-up or discharged), train station, U.S. point of entry, or any other location that provides transportation subject to the jurisdiction of the United States. The meaning of the term ‘‘transportation hub,’’ as applied to railroad facilities, includes railroad terminals, yards, storage facilities, yard offices, crew rooms, maintenance shops, and other areas regularly occupied by railroad personnel. The CDC Order broadly requires persons to wear masks in such settings and applies in both passenger and freight rail facilities. See CDC FAQs explaining that employees at transportation hubs must wear a mask 21 49 VerDate Sep<11>2014 16:15 Feb 26, 2021 Jkt 253001 carrier’s control (regardless of duty status). America’s railroad transportation system is essential—not only for public health, but also for America’s economy and other bedrocks of American life. Railroads carry life-saving medical supplies and medical providers into and across the nation to our hospitals, nursing homes, and physicians’ offices. Trains bring food and other essentials to our communities and bring America’s workforce to their jobs. Requiring mask use on our railroads will protect railroad employees and contractors, as well as FRA and participating State rail safety inspectors who enforce Federal railroad safety laws. Requiring mask use will also help control the spread of the virus causing the COVID–19 pandemic, slow the rate of international spread from trains moving across U.S. borders, prevent the emergence of new variants, and more quickly re-open America’s economy. For reasons described in the CDC Order, this E.O. applies to railroad personnel who have received a COVID– 19 vaccine and/or who have recovered from COVID–19.25 Finding and Order Based on the foregoing, FRA has determined that the spread of the virus that causes COVID–19 creates an emergency situation involving a hazard of death or personal injury. Accordingly, under the authority of 49 U.S.C. 20104, delegated to the Administrator of FRA by the Secretary of Transportation, 49 CFR 1.89, it is hereby ordered that freight railroads, passenger railroads, and any other person whose actions are necessary to effectuate the directives in this E.O., take the following actions, as required: I. Railroad carriers. (A) Railroad carriers must require their personnel to wear a mask in compliance with the CDC Order while engaged in railroad operations, including whenever in a transportation hub/facility under the railroad carrier’s control (regardless of duty status), except as described in Section III (Exceptions and exemptions), below. For the purpose of this E.O., the term ‘‘personnel’’ includes employees, contractors, probationary employees, and volunteers. Railroad carriers must provide their personnel with prominent and adequate notice of the mask requirements to facilitate awareness and while on the premises of a transportation hub unless they are the only person in the work area, such as in private offices, private hangars at airports, or in railroad yards (available at: https:// www.cdc.gov/coronavirus/2019-ncov/travelers/facemasks-public-transportation.html). 25 86 FR 8029. PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 compliance.26 At a minimum, this notice must inform railroad carrier personnel of the following: 1. Federal law requires every individual to wear a mask while engaged in railroad operations unless otherwise exempted and failure to comply may result in removal from service. 2. Refusing to wear a mask is a violation of Federal law and railroad carrier personnel may be subject to FRA enforcement action against them individually. (B) Railroad carriers must establish written procedures to manage situations with their personnel who refuse to comply with the requirement to wear a mask. At a minimum, for any person who is not exempted from the requirement to wear a mask and who refuses to comply with an instruction given by the railroad carrier with respect to wearing a mask, the railroad carrier must: 1. Remove the person from performing duties in support of railroad operations; and 2. Make best efforts to remove the person from the railroad transportation hub/facility as soon as practicable. II. Railroad carrier personnel. Railroad carrier personnel must comply with the mask wearing requirements of the CDC Order while engaged in railroad operations, including whenever in a transportation hub/facility under the railroad carrier’s control (regardless of duty status), except as described in Section III.D., below. For the purpose of this E.O., the term ‘‘personnel’’ includes employees, contractors, probationary employees, and volunteers. III. Exceptions and exemptions. (A) While the CDC Order applies to all persons awaiting, boarding, or alighting a conveyance and while in a transportation hub, this E.O. does not apply to passengers or persons (including railroad carrier personnel) in or on a passenger train or in public areas of passenger railroad transportation hubs or facilities. Note: The mask requirements in TSA SD 1582/84–21– 01, Security Measures—Face Mask Requirements, apply to passengers and such persons. (B) The requirement to wear a mask does not apply under the following circumstances: 1. When necessary to temporarily remove the mask for identity verification purposes. 2. For brief periods, while eating, drinking, or taking oral 26 Notice may include, if feasible, notifications on digital platforms, such as on apps, websites, or email; posted signage with illustrations; or other methods as appropriate. E:\FR\FM\01MRR1.SGM 01MRR1 Federal Register / Vol. 86, No. 38 / Monday, March 1, 2021 / Rules and Regulations medications.27 Note: Prolonged periods of mask removal are not permitted for eating or drinking; the mask must be worn between bites and sips. 3. While communicating with a person who is deaf or hard of hearing, when the ability to see the mouth is essential for communication. 4. If unconscious (for reasons other than sleeping), incapacitated, unable to be awakened, or otherwise unable to remove the mask without assistance.28 5. When necessary to temporarily remove the mask to provide a breath or saliva specimen for required alcohol testing under U.S. Department of Transportation drug and alcohol testing regulations or an employer-mandated substance abuse testing program. (C) The following persons are exempted from wearing masks: 1. Persons in private conveyances operated solely for personal, noncommercial use. 2. A driver, when operating a commercial motor vehicle, such as a crew transportation van, limo, or taxi, as this term is defined in 49 CFR 390.5, if the driver is the sole occupant of the vehicle. 3. A person who is the sole occupant of an enclosed cab of a locomotive, hirail vehicle, roadway maintenance machine, or any other on-track equipment that has an enclosed cab. (D) This E.O. exempts the following categories of persons from wearing masks: 29 27 The CDC has stated that brief periods of close contact without a mask should not exceed 15 minutes. https://www.cdc.gov/coronavirus/2019ncov/php/public-health-recommendations.html. 28 Persons who are experiencing difficulty breathing or shortness of breath or are feeling winded may remove the mask temporarily until able to resume normal breathing with the mask. Persons who are vomiting should remove the mask until vomiting ceases. Persons with acute illness may remove the mask if it interferes with necessary medical care such as supplemental oxygen administered via an oxygen mask. 86 FR 8027, FN 7. 29 Railroad carriers may impose requirements on employees requesting an exemption from the requirement to wear a mask, including medical consultation by a third party, medical documentation by a licensed medical provider, and/or other information as determined by the railroad carrier, as well as require evidence that the person does not have COVID–19, such as a negative result from a SARS–CoV–2 viral test or documentation of recovery from COVID–19. CDC definitions for SARS–CoV–2 viral test and documentation of recovery are available in Frequently Asked Questions at: https:// www.cdc.gov/coronavirus/2019-ncov/travelers/ testing-international-air-travelers.html. Railroad carriers may also impose additional protective measures that improve the ability of an employee eligible for exemption to maintain social distance (separation from others by 6 feet). Railroad carriers may further require that employees seeking exemption from the requirement to wear a mask request an exemption in advance. VerDate Sep<11>2014 16:15 Feb 26, 2021 Jkt 253001 1. People with disabilities who cannot wear a mask, or cannot safely wear a mask, because of the disability as defined by the Americans with Disabilities Act (42 U.S.C. 12101 et seq.).30 2. People 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.31 Preemption The requirements in this E.O. do not preempt any State, local, Tribal, or territorial rule, regulation, order, or standard necessary to eliminate or reduce a local safety hazard, which includes public health measures that are the same or more protective of public health than those required in this E.O., if that provision is not incompatible with this E.O. Relief Any railroad carrier affected by this E.O. may petition for special approval to take actions not in accordance with this E.O. Petitions must be submitted to the Associate Administrator for Railroad Safety, who is authorized to act on those requests without amending this E.O. In reviewing any petition for special approval, the Associate Administrator will grant petitions only if the petitioner has clearly articulated an alternative action that will provide, in the Associate Administrator’s judgment, at least a level of safety equivalent to that provided by compliance with this E.O. Civil Penalties Any violation of this E.O. may subject the person (a railroad carrier) committing the violation to a civil penalty of up to $118,826 for each day the violation continues. 49 U.S.C. 21301 and 86 FR 1751 (Jan. 11, 2021). Any individual (railroad personnel) who willfully violates a provision stated in this order is subject to civil penalties under 49 U.S.C. 21301. In addition, any individual (railroad personnel) whose violation of this order demonstrates the individual’s unfitness for safetysensitive service may be removed from safety-sensitive service on the railroad under 49 U.S.C. 20111. FRA may, through the Attorney General, also seek 30 This is a narrow exception that includes a person with a disability who cannot wear a mask for reasons related to the disability. CDC states it will issue additional guidance regarding persons who cannot wear a mask under this exemption. https://www.cdc.gov/quarantine/masks/masktravel-guidance.html. 86 FR at 8027–28. 31 For example, a maintenance shop employee performing welding operations may be exempt from this E.O., due to potential mask flammability concerns. PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 11891 injunctive relief to enforce this Order. 49 U.S.C. 20112. Effective Date and Notice to Affected Persons This E.O. is effective upon issuance and railroad carriers subject to this E.O. must immediately initiate steps to implement this E.O. This E.O. remains in effect until the CDC Order is modified or rescinded based on specific public health or other considerations, until the U.S. Secretary of Health and Human Services rescinds the determination under section 319 of the Public Health Service Act (42 U.S.C. 247d) that a public health emergency exists, or until rescinded by FRA, unless FRA extends its terms by subsequent notice published in the Federal Register. Review Opportunity for formal review of this E.O. will be provided under 49 U.S.C. 20104(b) and 5 U.S.C. 554. Administrative procedures governing such review are at 49 CFR part 211. Issued in Washington, DC, on February 24, 2021. Amitabha Bose, Acting Administrator, Federal Railroad Administration. [FR Doc. 2021–04233 Filed 2–25–21; 4:15 pm] BILLING CODE 4910–06–P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 389 [FMCSA–2016–0341] RIN 2126–AB96 Rulemaking Procedures Update Federal Motor Carrier Safety Administration (FMCSA), U.S. Department of Transportation. ACTION: Final rule; delay of effective date. AGENCY: In accordance with the memorandum of January 20, 2021, from the Assistant to the President and Chief of Staff, titled ‘‘Regulatory Freeze Pending Review,’’ the Department delays the effective date of the final rule, ‘‘Rulemaking Procedures Update,’’ until March 21, 2021. DATES: As of March 1, 2021, the effective date of the final rule published on December 31, 2020, at 85 FR 86843, is delayed until March 21, 2021. FOR FURTHER INFORMATION CONTACT: Mr. Steven J. LaFreniere, Regulatory SUMMARY: E:\FR\FM\01MRR1.SGM 01MRR1

Agencies

[Federal Register Volume 86, Number 38 (Monday, March 1, 2021)]
[Rules and Regulations]
[Pages 11888-11891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04233]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 209 and 211

[Emergency Order No. 32, Notice No. 1]


Emergency Order Requiring Face Mask Use in Railroad Operations

SUMMARY: To help prevent the spread of coronavirus disease 2019 (COVID-
19), the Federal Railroad Administration (FRA) is issuing this 
emergency order (E.O.) to require compliance with the mask requirements 
of the Order of the Centers for Disease Control and Prevention (CDC), 
Requirement for Persons to Wear Masks While on Conveyances and at 
Transportation Hubs. This E.O. also implements Promoting COVID-19 
Safety in Domestic and International Travel, issued on January 21, 
2021, requiring masks to be worn in or on airports, commercial 
aircraft, and various modes of surface transportation, including 
trains. Specifically, this E.O. addresses requirements for face mask 
use with respect to all freight rail operations and portions of each 
passenger rail operation under FRA's safety jurisdiction.

DATES: This emergency order is effective March 1, 2021.

FOR FURTHER INFORMATION CONTACT: Mark Patterson, Director, Office of 
Data Analysis and Program Support, at (202) 493-6282 or 
[email protected]; Elizabeth Gross, Attorney Adviser, Office of 
the Chief Counsel, at (202) 493-1342 or [email protected]; or 
Veronica Chittim, Attorney Adviser, Office of the Chief Counsel, at 
(202) 493-0273 or [email protected].

SUPPLEMENTARY INFORMATION:

Introduction

    FRA is issuing this E.O. to implement Executive Order 13998,\1\ 
which directs the Secretary of Transportation to take action to require 
masks to be worn in compliance with CDC guidelines in or on trains.\2\
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    \1\ 86 FR 7205 (Jan. 26, 2021).
    \2\ For example, this E.O. applies to all persons in or on a 
freight train, locomotive, high-rail vehicle, crew transportation 
vehicle, or in a railroad transportation facility, terminal, yard, 
storage facility, yard office, crew room, maintenance shop, and 
other areas regularly occupied by personnel engaged in railroad 
operations.
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    On January 31, 2021, the Transportation Security Administration 
(TSA) issued Security Directive (SD) 1582/84-21-01, Security Measures--
Face Mask Requirements (TSA SD), to implement Executive Order 13998 and 
to enforce the CDC Order with respect to conveyances and transportation 
facilities used in various modes of surface transportation, including 
passenger rail.
    On February 12, 2021, the Secretary of Transportation issued an 
Action Memorandum to further USDOT's efforts to implement the 
President's Executive Order 13998. Finding that COVID-19 and its 
variants continue to present unprecedented challenges to the health of 
the traveling public in all modes of transportation, and that the 
wearing of masks on all modes of transportation can mitigate the risk 
of travelers spreading COVID-19 and can instill safety and confidence 
in transportation systems, the Secretary directed FRA to take action to 
support and carry out enforcement of the CDC Order with respect to 
transportation entities subject to its jurisdiction.
    In issuing this E.O., FRA is exercising its emergency railroad 
safety authority to the extent necessary to require mask wearing in 
accordance with the CDC Order and implement Executive Order 13998 with 
respect to freight rail operations and those portions of passenger rail 
operations \3\ not already covered by the TSA SD. FRA is not exercising 
its authority over any other aspect of the COVID-19 pandemic and does 
not otherwise intend by this E.O. to affect working conditions for 
employees and contractors engaged in railroad operations.\4\
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    \3\ For an explanation of how FRA exercises its safety 
jurisdiction over passenger rail operations, see ``FRA's Policy on 
Jurisdiction Over Passenger Operations'' in 49 CFR part 209, 
appendix A--Statement of Agency Policy Concerning Enforcement of the 
Federal Railroad Safety Laws.
    \4\ Nothing in this E.O. is intended to interfere with any 
applicable jurisdiction over COVID-19 issues in the workplace by the 
Occupational Safety and Health Administration. Additionally, FRA is 
not exercising its railroad safety authority over any COVID-19 issue 
other than requiring compliance with mask mandates in accordance 
with the CDC Order, nor is it exercising its jurisdiction over how a 
railroad decides to comply with the CDC Order and this E.O. For 
example, a railroad may not include any type of COVID-19 risk-based 
hazard analysis as part of its railroad system safety program under 
either 49 CFR part 270 (System Safety Program) or part 271 (Risk 
Reduction Program) in order to protect that analysis from discovery 
or use in litigation under either 49 CFR 270.105 or 49 CFR 271.11.
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Authority

    Authority to enforce Federal railroad safety laws has been 
delegated by the U.S. Secretary of Transportation to the Administrator 
of FRA. 49 U.S.C. 103; 49 CFR 1.89(e) and internal delegations. 
Railroads are subject to FRA's safety jurisdiction under the Federal 
railroad safety laws. 49 U.S.C. 20101, 20103. FRA is authorized to 
issue emergency orders where an unsafe condition or practice ``causes 
an emergency situation involving a hazard of death, personal injury, or 
significant harm to the environment.'' 49 U.S.C. 20104. Emergency 
orders may immediately impose ``restrictions and prohibitions . . . 
that may be necessary to abate the situation.'' Id.

COVID-19 Pandemic

    Due to the ongoing COVID-19 pandemic, and to reduce the spread of 
COVID-19, President Biden issued Executive Order 13998, Promoting 
COVID-19 Safety in Domestic and International Travel, on January 21, 
2021, requiring masks to be worn in airports, on commercial aircraft, 
and in various modes of surface transportation,

[[Page 11889]]

including rail. To implement Executive Order 13998, to require 
compliance with the public health standards set forth in the CDC 
Order,\5\ and due to the immediate need to ensure masks are worn 
appropriately in the railroad industry to prevent the spread of COVID-
19, FRA has determined that an emergency situation involving a hazard 
of death and personal injury exists, and is issuing this E.O. pursuant 
to the authority of 49 U.S.C. 20101, 20104. FRA is authorized to 
promote safety in every area of railroad operations. 49 U.S.C. 20101, 
20103.\6\ The failure to wear masks as required by the CDC Order during 
railroad operations could impact railroad employees' safety with 
respect to the risks of COVID-19. Consistent with these mandates and 
FRA's authority, and after consultation with CDC and TSA, FRA is 
issuing this E.O. to require freight and passenger railroad carriers to 
comply with the mask \7\ requirements of the CDC Order \8\ during 
railroad operations subject to FRA's railroad safety jurisdiction, 
except to the extent portions of the passenger railroad carrier's 
operations are already covered by the TSA SD. For example, this E.O. 
applies to all persons in or on a freight train, locomotive, high-rail 
vehicle, crew transportation vehicle, or in a railroad transportation 
facility, terminal, yard, storage facility, yard office, crew room, 
maintenance shop, and other areas regularly occupied by railroad 
personnel. While the CDC Order applies to all persons awaiting, 
boarding, or alighting a conveyance and while in a transportation 
hub,\9\ this E.O. does not apply to passengers or persons (including 
railroad carrier personnel) in or on a passenger train or in public 
areas of passenger railroad transportation hubs or facilities. The mask 
requirements in TSA SD 1582/84-21-01, Security Measures--Face Mask 
Requirements, apply to passengers and such persons.
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    \5\ See order under section 361 of the Public Health Service Act 
(42 U.S.C. 264) and 42 CFR 70.2, 71.31(b), 71.32(b); Requirement for 
Persons to Wear Masks While on Conveyances and at Transportation 
Hubs (January 29, 2021). 86 FR 8025 (Feb. 3, 2021).
    \6\ FRA's exercise of its authority is consistent with prior, 
targeted regulatory action taken under 49 U.S.C. ch. 201 to protect 
employee exposure to health risks in the workplace. See, e.g., rules 
on occupational noise exposure (49 CFR part 227), camp cars as 
sleeping quarters (49 CFR part 228), locomotive cab sanitation and 
cab temperature (e.g., 49 CFR part 229).
    \7\ Mask means a material covering the nose and mouth of the 
wearer, excluding face shields. The CDC has stated that a properly 
worn mask completely covers the nose and mouth of the wearer. A mask 
should be secured to the head, including with ties or ear loops. A 
mask should fit snugly but comfortably against the side of the face. 
Masks do not include face shields. Masks can be either manufactured 
or homemade and should be a solid piece of material without slits, 
exhalation valves, or punctures. Medical masks and N-95 respirators 
fulfill the requirements of this E.O. CDC guidance for attributes of 
acceptable masks in the context of this E.O. is available at https://www.cdc.gov/quarantine/masks/mask-travel-guidance.html.
    \8\ The CDC Order states, ``While this [CDC] 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).'' 86 FR 8030.
    \9\ 86 FR 8025 (Feb. 3, 2021) (requiring face masks to be worn 
by all travelers while on public transportation). Your Guide to 
Masks, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html (``CDC recommends that people wear 
masks in public settings, at events and gatherings, and anywhere 
they will be around other people. Effective February 2, 2021, masks 
are required on planes, buses, trains, and other forms of public 
transportation traveling into, within, or out of the United States 
and in U.S. transportation hubs such as airports and stations.''); 
Requirement for Face Masks on Public Transportation Conveyances and 
at Transportation Hubs, https://www.cdc.gov/coronavirus/2019-ncov/travelers/face-masks-public-transportation.html (``CDC has issued an 
order that requires face masks to be worn by all travelers while on 
public transportation (which includes all passengers and all 
personnel operating conveyances). People must wear masks that 
completely cover both the mouth and nose while awaiting, boarding, 
disembarking, or traveling on airplanes, ships, ferries, trains, 
subways, buses, taxis, and ride-shares as they are traveling into, 
within, or out of the United States and U.S. territories. People 
must also wear masks while at transportation hubs (e.g., airports, 
bus or ferry terminals, train and subway stations, seaports) and 
other locations where people board public transportation in the 
United States and U.S. territories.'').
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    There is currently a pandemic of respiratory disease, COVID-19, 
caused by a novel coronavirus (SARS-CoV-2). As of February 16, 2021, 
there have been over 108,000,000 confirmed cases of COVID-19 globally, 
resulting in nearly 2,400,000 deaths.\10\ As of February 14, 2021, 
there have been over 27,000,000 cases identified in the United States, 
and over 482,000 deaths due to the disease.\11\
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    \10\ See https://covid19.who.int.
    \11\ See https://covid.cdc.gov/covid-data-tracker/#datatracker-home.
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    According to the CDC, multiple new SARS-CoV-2 variants have emerged 
in recent weeks, including at least one with evidence of increased 
transmissibility.\12\ These variants seem to spread more easily and 
quickly than other variants, which may lead to more cases of COVID-
19.\13\ An increase in the number of cases will put more strain on 
health care resources, lead to more hospitalizations, and potentially 
lead to more deaths.\14\ While the CDC is closely monitoring these new 
variants to learn more about them, rigorous and increased compliance 
with public health mitigation strategies, such as the use of masks, is 
essential to limit the spread of the virus including any new 
variants.\15\ Additionally, controlling the spread of the virus by 
implementing public health measures such as mask wearing will help 
prevent new mutations, as viruses will not mutate well if they do not 
have the opportunity to replicate freely.\16\ In short, given these 
developments, it is more critical than ever that persons wear masks 
whenever possible to help prevent the spread of the virus that causes 
COVID-19 and the further emergence of new variants. The CDC has also 
recently published research documenting a decline in COVID-19 
hospitalization growth rates associated with statewide mask 
mandates.\17\ For a detailed discussion on how appropriate mask wearing 
helps reduce COVID-19 transmission, FRA refers readers to the CDC 
Order.\18\
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    \12\ See https://www.cdc.gov/coronavirus/2019-ncov/more/science-and-research/scientific-brief-emerging-variants.html; https://www.cdc.gov/coronavirus/2019-ncov/transmission/variant.html.
    \13\ Id.
    \14\ Id.
    \15\ https://www.cdc.gov/coronavirus/2019-ncov/transmission/variant.html.
    \16\ https://www.whitehouse.gov/briefing-room/press-briefings/2021/02/03/press-briefing-white-house-covid-19-response-team-and-public-health-officials/.
    \17\ Joo H, Miller GF, Sunshine G, et al. Decline in COVID-19 
Hospitalization Growth Rates Associated with Statewide Mask 
Mandates--10 States, March-October 2020, MMWR Morb Mortal Wkly Rep. 
ePub: 5 Feb. 2021. DOI: https://www.cdc.gov/mmwr/volumes/70/wr/mm7006e2.htm.
    \18\ 86 FR 8025-8030.
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Lack of Uniformity in Mask Wearing in Railroad Operations

    As of February 1, 2021, field observations \19\ from FRA's railroad 
safety inspectors regarding mask use on railroad property indicate that 
the critical practice of wearing a face mask is not consistent or 
uniform among railroad personnel. While some railroad carriers require 
their personnel to wear masks when working in an occupied locomotive 
cab and in rail facilities and shops, FRA has found this is not a 
universal requirement. FRA has observed railroad personnel often not 
wearing a face mask on railroad property, both in situations where 
social distancing is possible, and situations involving close proximity 
to others. FRA inspectors have also observed railroad personnel who did 
not put on a face mask when approached by the

[[Page 11890]]

inspectors to discuss matters of railroad safety.
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    \19\ These FRA field observations constitute ``inspection'' and 
``investigation'' under 49 U.S.C. 20104(a)(1).
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Necessity of Issuing This E.O.

    Taking into consideration the unique and exigent circumstances 
presented by the COVID-19 pandemic (particularly the recent emergence 
of variants with increased transmissibility), as well as the 
inconsistent use of masks observed by FRA inspectors through FRA 
inspection and investigation during railroad operations, FRA has 
determined that the COVID-19 pandemic has created an unsafe condition 
or practice involving a hazard of death or personal injury--not only to 
railroad personnel, but also to FRA and participating State \20\ rail 
safety inspectors who interact with railroad personnel during the 
performance of their essential railroad safety duties. This E.O. is 
necessary to abate this emergency situation, by FRA requiring face mask 
use in accordance with the CDC Order, to ensure a minimum level of 
nationwide compliance,\21\ together with the TSA SD. Railroad carriers 
\22\ and their personnel must comply with the mask-wearing requirements 
set forth in the CDC Order while engaged in railroad operations,\23\ 
including whenever they are in a transportation hub/facility \24\ under 
the railroad carrier's control (regardless of duty status).
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    \20\ 49 U.S.C. 20105.
    \21\ 49 U.S.C. 20106(a)(1).
    \22\ Railroad means any form of nonhighway ground transportation 
that runs on rails or electro-magnetic guideways, including (i) 
commuter or other short-haul passenger service in a metropolitan or 
suburban area and commuter service that was operated by the 
Consolidated Rail Corporation on January 1, 1979; and (ii) high 
speed ground transportation systems that connect metropolitan areas, 
without regard to whether those systems use new technologies not 
associated with traditional railroads; but does not include rapid 
transit operations in an urban area that are not connected to the 
general railroad system of transportation. Railroad carrier means a 
person providing railroad transportation. General railroad system of 
transportation has the same meaning as under 49 CFR part 209, 
appendix A--Statement of Agency Policy Concerning Enforcement of the 
Federal Railroad Safety Laws.
    \23\ Railroad operation means any activity which affects the 
movement of a train, locomotive, or other on-track equipment, singly 
or in combination with other equipment, on the track of a railroad.
    \24\ Transportation hub/facility means any airport, bus 
terminal, marina, seaport or other port, subway stations, terminal 
(including any fixed facility at which passengers are picked-up or 
discharged), train station, U.S. point of entry, or any other 
location that provides transportation subject to the jurisdiction of 
the United States. The meaning of the term ``transportation hub,'' 
as applied to railroad facilities, includes railroad terminals, 
yards, storage facilities, yard offices, crew rooms, maintenance 
shops, and other areas regularly occupied by railroad personnel. The 
CDC Order broadly requires persons to wear masks in such settings 
and applies in both passenger and freight rail facilities. See CDC 
FAQs explaining that employees at transportation hubs must wear a 
mask while on the premises of a transportation hub unless they are 
the only person in the work area, such as in private offices, 
private hangars at airports, or in railroad yards (available at: 
https://www.cdc.gov/coronavirus/2019-ncov/travelers/face-masks-public-transportation.html).
---------------------------------------------------------------------------

    America's railroad transportation system is essential--not only for 
public health, but also for America's economy and other bedrocks of 
American life. Railroads carry life-saving medical supplies and medical 
providers into and across the nation to our hospitals, nursing homes, 
and physicians' offices. Trains bring food and other essentials to our 
communities and bring America's workforce to their jobs. Requiring mask 
use on our railroads will protect railroad employees and contractors, 
as well as FRA and participating State rail safety inspectors who 
enforce Federal railroad safety laws. Requiring mask use will also help 
control the spread of the virus causing the COVID-19 pandemic, slow the 
rate of international spread from trains moving across U.S. borders, 
prevent the emergence of new variants, and more quickly re-open 
America's economy.
    For reasons described in the CDC Order, this E.O. applies to 
railroad personnel who have received a COVID-19 vaccine and/or who have 
recovered from COVID-19.\25\
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    \25\ 86 FR 8029.
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Finding and Order

    Based on the foregoing, FRA has determined that the spread of the 
virus that causes COVID-19 creates an emergency situation involving a 
hazard of death or personal injury. Accordingly, under the authority of 
49 U.S.C. 20104, delegated to the Administrator of FRA by the Secretary 
of Transportation, 49 CFR 1.89, it is hereby ordered that freight 
railroads, passenger railroads, and any other person whose actions are 
necessary to effectuate the directives in this E.O., take the following 
actions, as required:
    I. Railroad carriers. (A) Railroad carriers must require their 
personnel to wear a mask in compliance with the CDC Order while engaged 
in railroad operations, including whenever in a transportation hub/
facility under the railroad carrier's control (regardless of duty 
status), except as described in Section III (Exceptions and 
exemptions), below. For the purpose of this E.O., the term 
``personnel'' includes employees, contractors, probationary employees, 
and volunteers. Railroad carriers must provide their personnel with 
prominent and adequate notice of the mask requirements to facilitate 
awareness and compliance.\26\ At a minimum, this notice must inform 
railroad carrier personnel of the following:
---------------------------------------------------------------------------

    \26\ Notice may include, if feasible, notifications on digital 
platforms, such as on apps, websites, or email; posted signage with 
illustrations; or other methods as appropriate.
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    1. Federal law requires every individual to wear a mask while 
engaged in railroad operations unless otherwise exempted and failure to 
comply may result in removal from service.
    2. Refusing to wear a mask is a violation of Federal law and 
railroad carrier personnel may be subject to FRA enforcement action 
against them individually.
    (B) Railroad carriers must establish written procedures to manage 
situations with their personnel who refuse to comply with the 
requirement to wear a mask. At a minimum, for any person who is not 
exempted from the requirement to wear a mask and who refuses to comply 
with an instruction given by the railroad carrier with respect to 
wearing a mask, the railroad carrier must:
    1. Remove the person from performing duties in support of railroad 
operations; and
    2. Make best efforts to remove the person from the railroad 
transportation hub/facility as soon as practicable.
    II. Railroad carrier personnel. Railroad carrier personnel must 
comply with the mask wearing requirements of the CDC Order while 
engaged in railroad operations, including whenever in a transportation 
hub/facility under the railroad carrier's control (regardless of duty 
status), except as described in Section III.D., below. For the purpose 
of this E.O., the term ``personnel'' includes employees, contractors, 
probationary employees, and volunteers.
    III. Exceptions and exemptions. (A) While the CDC Order applies to 
all persons awaiting, boarding, or alighting a conveyance and while in 
a transportation hub, this E.O. does not apply to passengers or persons 
(including railroad carrier personnel) in or on a passenger train or in 
public areas of passenger railroad transportation hubs or facilities. 
Note: The mask requirements in TSA SD 1582/84-21-01, Security 
Measures--Face Mask Requirements, apply to passengers and such persons.
    (B) The requirement to wear a mask does not apply under the 
following circumstances:
    1. When necessary to temporarily remove the mask for identity 
verification purposes.
    2. For brief periods, while eating, drinking, or taking oral

[[Page 11891]]

medications.\27\ Note: Prolonged periods of mask removal are not 
permitted for eating or drinking; the mask must be worn between bites 
and sips.
---------------------------------------------------------------------------

    \27\ The CDC has stated that brief periods of close contact 
without a mask should not exceed 15 minutes. https://www.cdc.gov/coronavirus/2019-ncov/php/public-health-recommendations.html.
---------------------------------------------------------------------------

    3. While communicating with a person who is deaf or hard of 
hearing, when the ability to see the mouth is essential for 
communication.
    4. If unconscious (for reasons other than sleeping), incapacitated, 
unable to be awakened, or otherwise unable to remove the mask without 
assistance.\28\
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    \28\ Persons who are experiencing difficulty breathing or 
shortness of breath or are feeling winded may remove the mask 
temporarily until able to resume normal breathing with the mask. 
Persons who are vomiting should remove the mask until vomiting 
ceases. Persons with acute illness may remove the mask if it 
interferes with necessary medical care such as supplemental oxygen 
administered via an oxygen mask. 86 FR 8027, FN 7.
---------------------------------------------------------------------------

    5. When necessary to temporarily remove the mask to provide a 
breath or saliva specimen for required alcohol testing under U.S. 
Department of Transportation drug and alcohol testing regulations or an 
employer-mandated substance abuse testing program.
    (C) The following persons are exempted from wearing masks:
    1. Persons in private conveyances operated solely for personal, 
non-commercial use.
    2. A driver, when operating a commercial motor vehicle, such as a 
crew transportation van, limo, or taxi, as this term is defined in 49 
CFR 390.5, if the driver is the sole occupant of the vehicle.
    3. A person who is the sole occupant of an enclosed cab of a 
locomotive, hi-rail vehicle, roadway maintenance machine, or any other 
on-track equipment that has an enclosed cab.
    (D) This E.O. exempts the following categories of persons from 
wearing masks: \29\
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    \29\ Railroad carriers may impose requirements on employees 
requesting an exemption from the requirement to wear a mask, 
including medical consultation by a third party, medical 
documentation by a licensed medical provider, and/or other 
information as determined by the railroad carrier, as well as 
require evidence that the person does not have COVID-19, such as a 
negative result from a SARS-CoV-2 viral test or documentation of 
recovery from COVID-19. CDC definitions for SARS-CoV-2 viral test 
and documentation of recovery are available in Frequently Asked 
Questions at: https://www.cdc.gov/coronavirus/2019-ncov/travelers/testing-international-air-travelers.html. Railroad carriers may also 
impose additional protective measures that improve the ability of an 
employee eligible for exemption to maintain social distance 
(separation from others by 6 feet). Railroad carriers may further 
require that employees seeking exemption from the requirement to 
wear a mask request an exemption in advance.
---------------------------------------------------------------------------

    1. People with disabilities who cannot wear a mask, or cannot 
safely wear a mask, because of the disability as defined by the 
Americans with Disabilities Act (42 U.S.C. 12101 et seq.).\30\
---------------------------------------------------------------------------

    \30\ This is a narrow exception that includes a person with a 
disability who cannot wear a mask for reasons related to the 
disability. CDC states it will issue additional guidance regarding 
persons who cannot wear a mask under this exemption. https://www.cdc.gov/quarantine/masks/mask-travel-guidance.html. 86 FR at 
8027-28.
---------------------------------------------------------------------------

    2. People 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.\31\
---------------------------------------------------------------------------

    \31\ For example, a maintenance shop employee performing welding 
operations may be exempt from this E.O., due to potential mask 
flammability concerns.
---------------------------------------------------------------------------

Preemption

    The requirements in this E.O. do not preempt any State, local, 
Tribal, or territorial rule, regulation, order, or standard necessary 
to eliminate or reduce a local safety hazard, which includes public 
health measures that are the same or more protective of public health 
than those required in this E.O., if that provision is not incompatible 
with this E.O.

Relief

    Any railroad carrier affected by this E.O. may petition for special 
approval to take actions not in accordance with this E.O. Petitions 
must be submitted to the Associate Administrator for Railroad Safety, 
who is authorized to act on those requests without amending this E.O. 
In reviewing any petition for special approval, the Associate 
Administrator will grant petitions only if the petitioner has clearly 
articulated an alternative action that will provide, in the Associate 
Administrator's judgment, at least a level of safety equivalent to that 
provided by compliance with this E.O.

Civil Penalties

    Any violation of this E.O. may subject the person (a railroad 
carrier) committing the violation to a civil penalty of up to $118,826 
for each day the violation continues. 49 U.S.C. 21301 and 86 FR 1751 
(Jan. 11, 2021). Any individual (railroad personnel) who willfully 
violates a provision stated in this order is subject to civil penalties 
under 49 U.S.C. 21301. In addition, any individual (railroad personnel) 
whose violation of this order demonstrates the individual's unfitness 
for safety-sensitive service may be removed from safety-sensitive 
service on the railroad under 49 U.S.C. 20111. FRA may, through the 
Attorney General, also seek injunctive relief to enforce this Order. 49 
U.S.C. 20112.

Effective Date and Notice to Affected Persons

    This E.O. is effective upon issuance and railroad carriers subject 
to this E.O. must immediately initiate steps to implement this E.O. 
This E.O. remains in effect until the CDC Order is modified or 
rescinded based on specific public health or other considerations, 
until the U.S. Secretary of Health and Human Services rescinds the 
determination under section 319 of the Public Health Service Act (42 
U.S.C. 247d) that a public health emergency exists, or until rescinded 
by FRA, unless FRA extends its terms by subsequent notice published in 
the Federal Register.

Review

    Opportunity for formal review of this E.O. will be provided under 
49 U.S.C. 20104(b) and 5 U.S.C. 554. Administrative procedures 
governing such review are at 49 CFR part 211.

    Issued in Washington, DC, on February 24, 2021.
Amitabha Bose,
Acting Administrator, Federal Railroad Administration.
[FR Doc. 2021-04233 Filed 2-25-21; 4:15 pm]
BILLING CODE 4910-06-P
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