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Mask Mandate: Does the Federal Aviation AdministrationHave Authority to Require Masks on Flights?

CRS Legal Sidebar –Mask Mandate: Does the Federal Aviation Administration Have Authority to Require Masks on Flights?, February 8, 2021: “The Centers for Disease Control and Prevention (CDC) cautions that although air circulation and filtration systems in passenger aircraft help reduce the spread of most viruses, sitting within six feet of others on flights may still increase the risk of contracting Coronavirus Disease 2019 (COVID-19). Thus, in response to the COVID-19 pandemic, all major U.S. airlines voluntarily implemented policies requiring passengers and crew to wear face masks during flights. However, some commentators raised concerns that the lack of a federal mask mandate has hindered the airline industry’s voluntary enforcement of these requirements.On January 21, 2021, President Biden issued an executive order titled Promoting COVID-19 Safety in Domestic and International Travel. Among other things, the order instructs several federal agencies, including the Federal Aviation Administration (FAA), and “the heads of any other executive departments and agencies that have relevant regulatory authority” to“immediately take action,to the extent appropriate and consistent with applicable law, to require masks to be worn in compliance with CDC guidelines” on certain modes of transportation. The CDC has, in turn, issued an order imposing mask requirement sin a broad range of transportation contexts, including on commercial aircraft. The CDC says that it has authority to enforce its order through criminal penalties, and that the order “shall be enforced by the Transportation Security Administration under appropriate statutory and regulatory authorities.” But the CDC also stated that it expects other federal agencies will implement “additional civil measures” enforcing the mask requirements,consistent with President Biden’s executive order. While the executive order requires federal agencies with “relevant regulatory authority” to take action to require masks, it does not specify which agencies ultimately will issue mask requirements. It also does not identify the statutory authorities that will form the basis for agency actions imposing these requirements. The FAA exercises authority over aviation safety, and some industry group sand Members of Congress had specifically called on the FAA to require masks on flights prior to the executive order. These developments have raised questions about the FAA’s authority to mandate masks on commercial aircraft. This Legal Sidebar provides a brief overview of the FAA’s statutory authority to regulate safety in civil aviation. It then examines whether that FAA authority covers health issues on commercial flights and whether that authority provides a basis for the FAA to mandate the use of masks. This Legal Sidebar focuses specifically on FAA authority over commercial aircraft safety, and does not address FAA authority to mandate masks on non-commercial aircraft or within airports, which may implicate different authorities and considerations…”

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