Commercial Transportation
| Publication year | 2022 |
Commercial Transportation
Madeline E. McNeeley
Sarah L. Adle
Joshua H. Dorminy
Elizabeth M. Brooks
Stephen G. Lowry
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Commercial transportation involves all the significant forms of passenger and freight transportation across the United States. This Article surveys significant judicial, regulatory, and legislative developments in federal commercial transportation law affecting Georgia, Florida, and Alabama during the period from January 1, 2021, through December 31, 2021.1 The first three areas discussed here are
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subject to heavy federal regulation due to their far-reaching effects on interstate commerce: aviation, trucking and other commercial motor vehicles, and railroads. The remaining subjects covered in this Article—autonomous-vehicle technology, shareable electric bicycles, and shareable scooters—remain regulated primarily at the state and local levels but are discussed here to the extent they interact with the federal arena.
The federal government has almost exclusive control over commercial aviation, which plays a critical role in the welfare of the United States' citizens and economy. Since it began in early 2020, the COVID-19 pandemic has had a significant impact across all industries, including aviation. This public health crisis has involved the action and coordination of numerous federal entities, particularly air travel. While there are non-pandemic-related updates from this Survey period, the pressing need to address a moving target in real time remained at the forefront.
A. Regulation
Multiple federal agencies, including the United States Department of Transportation (USDOT), Federal Aviation Administration (FAA), Transportation Security Administration (TSA), and Centers for Disease Control and Prevention (CDC) have enacted rules and regulations in response to the COVID-19 pandemic. Face masks, testing, and vaccine requirements for air travel were put into place and changed with the tide of data and necessary public health measures related to COVID-19.
On January 21, 2021, President Biden issued Executive Order (E.O.) 13,9982 in response to the CDC, the Surgeon General, and the National Institutes of Health's (NIH) conclusion that mask-wearing could mitigate the spread of COVID-19. With this finding and the lack of unified, controlling authority, public health measures on modes of transportation and entry points into the United States were necessary "to save lives and allow all Americans, including the millions of people employed in the transportation industry, to travel and work safely[.]"3
E.O. 13,998 went into effect immediately and required masks to be worn in compliance with CDC guidelines in airports and on commercial aircrafts.4 Given this novel task, the departments enacting regulations
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were ordered to report to the COVID-19 Response Coordinator regarding additional measures that may be taken to protect public transportation users.5 E.O. 13,998 also announced an executive policy that international travelers entering the United States must provide proof of a recent negative COVID-19 test prior to entry and comply with other CDC guidelines, including periods of isolation or quarantine after entry.6 The FAA and TSA were tasked with coordinating with the CDC to determine the requirements and procedure to execute this policy, such as the timing and types of tests that would provide reliable safeguards.7
Following E.O. 13,998, the CDC promulgated an Emergency Action requiring all persons, with limited exceptions, to wear a mask covering "the mouth and nose when traveling on any conveyance" or while inside any transportation hub within the United States.8 Airline and airport operators were responsible for using "best efforts" to ensure compliance with the Order, including denying entry to or removing persons not properly wearing masks.9 CDC deemed this Order necessary for the protection of the public's health as well as the country's economy, given the increased risk of spreading COVID-19 during air travel due to close contact with others.10 The travel mask mandate was to remain in effect "unless modified or rescinded based on specific public health or other considerations, or until the 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."11
The chain of command moved swiftly. On January 27, 2021, the Acting Secretary of Homeland Security declared the existence of a national emergency requiring TSA to implement the Orders put forth by the President and the CDC.12 Accordingly, TSA issued emergency security directives to airport operators,13 aircraft operators,14 and
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foreign air carriers15 requiring mask wearing at airports and on commercial aircraft on all flights to, from, or within the United States. In April 2021, the Department of Homeland Security (DHS) published an official notification that TSA aviation security directives requiring mask wearing were applicable to all airport and aircraft carriers "to protect the safety and security of the traveling public, transportation workers, and the transportation system from the threat of COVID-19."16 The travel mask mandate was extended several times throughout this Survey period as the pandemic continued.17
While COVID-19 tests were not required for domestic air travel, TSA did enact testing regulations for travelers entering the United States due to the numerous COVID-19 variants that emerged worldwide. In January 2021, the CDC issued an Order requiring "negative pre-departure COVID-19 test results or documentation of recovery from COVID-19 for all airline or other aircraft passengers arriving into the United States from any foreign country."18 Passengers were required to present a viral test conducted on a specimen collected within three days of the flight's departure from a foreign country or approved documentation of previous COVID-19 infection, recovery, and clearance for travel.19 A "limited humanitarian exemption category" was created for passengers demonstrating exigent circumstances and the inability to access or complete predeparture testing.20
As the COVID-19 pandemic evolved, so did the air travel testing requirements. In December 2021, the CDC amended its previous Order to require all air travelers aged two and older, regardless of nationality or vaccination status, to show documentation of a negative viral test result taken within one day of the flight's departure to the United
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States before boarding.21 If the traveler recently recovered from COVID-19, he or she could instead provide documentation of a positive viral test result on a sample taken no more than 90 days before the flight's departure from a foreign country and a letter from a healthcare provider or public health official confirming clearance to travel.22 These stricter measures were implemented in response to the Omicron variant of COVID-19, which was "particularly concerning and of critical significance" due to its rapid spread.23 This rule was effective "until more information becomes available that may alter or improve the public health outlook[,]"24 highlighting the ever-changing data related to COVID-19 and the government's need to take swift action to address new issues.
As they became more widely available in 2021, COVID-19 vaccines were another instrument in regulating air travel. In October 2021, President Biden issued a Proclamation "to adopt an air travel policy that relies primarily on vaccination [as an added tool to the current multi-layered strategy] to advance the safe resumption of international air travel to the United States."25 Relying on the CDC's science-based determination that vaccination slowed the spread of COVID-19, President Biden suspended and limited air travel entry into the United States for non-citizen nonimmigrants not fully vaccinated against COVID-19.26 These restrictions did not apply to U.S. citizens, nationals, permanent residents, immigrants, or some air crew members.27
The same day, the CDC issued an Order implementing the Proclamation and amended it to provide further instructions.28 What constituted a COVID-19 vaccine and what it meant to be fully vaccinated were clearly defined to avoid confusion or dispute.29 On November 8, 2021, TSA enacted a security directive—effective immediately and for one year—following the CDC's Order, that required non-citizen, nonimmigrant international travelers coming to
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the U.S. by air to be fully vaccinated against COVID-19 or to provide proof that they fall within an exception to the vaccination requirements according to the CDC.30
Aviation regulations during this Survey period were heavily focused on COVID-19 due to the ongoing crisis, but other issues were also addressed. In January 2021, the FAA enacted a rule permitting the routine operation of small, unmanned aircraft systems (UAS) at night or over people under certain conditions.31 This was "the next step in the FAA's incremental approach to integrating UAS into the national airspace system (NAS), based on demands for increased operational flexibility and the experience the FAA has gained since it initially published [14 C.F.R.] part 107."32 The prior rule limited small UAS operations to those over people directly participating in the operation, located under a covered structure or inside a stationary vehicle, but the update expanded the ability to conduct operations over people, as long as certain operational requirements were met.33 This rule was updated with minor corrections in November 2021.34
The FAA also adopted final regulations to implement a Pilot Records Database (PRD) for pilots' records to be shared with air carriers and other operators in an electronic data...
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