Executive Order 13988 of January 21, 2021, Executive Order on Promoting COVID-19 Safety in Domestic and International Travel. Published in the Federal Register at 86 FR 7205 (January 26, 2021).
President Biden's Executive Order 13988 of January 21, 2021, Executive Order on Promoting COVID-19 Safety in Domestic and International Travel, directs relevant agencies to incorporate CDC recommendations on public modes of transportation and at ports of entry to the United States, including recommendations such as mask-wearing, physical distancing, appropriate ventilation, timely testing, and possibly self-quarantine after U.S. entry. It also directs relevant agencies to assess the January 12, 2021 CDC order requiring a negative COVID-19 test result for airline passengers traveling into the United States, and, based on that assessment, take any further appropriate actions and planning regarding air, land, and sea travel.
Section 1. Policy.
Supports "science-based public health measures" as "critical to preventing the spread of coronavirus disease 2019 (COVID-19) by travelers within the United States and those who enter the country from abroad," specifically citing the following measures recommended by the CDC: "mask-wearing, physical distancing, appropriate ventilation, and timely testing." Then describes the Administration's policy of implementing "these public health measures consistent with CDC guidelines on public modes of transportation and at ports of entry to the United States."
Section 2. Immediate Action to Require Mask-Wearing on Certain Domestic Modes of Transportation.
Directs the heads of federal agencies and departments with relevant regulatory authority to immediately take action consistent with applicable law to require masks to be worn in compliance with DCD guidelines in or on airports, commercial aircraft, trains, public maritime vessels including ferries, intercity bus services, and all forms of public transportation as defined at 49 USC 5302 paragaph 14.
Section 5. International Travel.
Section 5(a) provides:
"to the extent feasible, travelers seeking to enter the United States from a foreign country shall be:
(i) required to produce proof of a recent negative COVID-19 test prior to entry; and
(ii) required to comply with other applicable CDC guidelines concerning international travel, including recommended periods of self-quarantine or self-isolation after entry into the United States."
Section 5(b) Air Travel.
Section 5(b)(i), regarding air travel, provides that HHS/CDC, in coordination with DOT/FAA, and DHS/TSA, "shall assess the CDC order of January 12, 2021, regarding the requirement of a negative COVID-19 test result for airline passengers traveling into the United States, in light of subsection (a) of this section," and then "take any further appropriate regulatory action, to the extent feasible and consistent with CDC guidelines and applicable law." Section 5(b) states that this assessment and regulatory action:
"shall include consideration of:
(A) the timing and types of COVID-19 tests that should satisfy the negative test requirement, including consideration of additional testing immediately prior to departure;
(B) the proof of test results that travelers should be required to provide;
(C) the feasibility of implementing alternative and sufficiently protective public health measures, such as testing, self-quarantine, and self-isolation on arrival, for travelers entering the United States from countries where COVID-19 tests are inaccessible, particularly where such inaccessibility of tests would affect the ability of United States citizens and lawful permanent residents to return to the United States; and
(D) measures to prevent fraud."
Section 5(b)(ii) requires HHS, DOT/FAA, and DHS/TSA to promptly provide to the President, through the COVID-19 Response Coordinator, "a plan for how the Secretary and other Federal Government actors could implement the policy stated in subsection (a) of this section with respect to CDC-recommended periods of self-quarantine or self-isolation after a flight to the United States from a foreign country, as he deems appropriate and consistent with applicable law. The plan shall identify agencies' tools and mechanisms to assist travelers in complying with such policy."
Section 5(b)(iii) requires DOS, in consultation with HHS/CDC, DOT/FAA, and DHS to "consult with foreign governments, the World Health Organization, the International Civil Aviation Organization, the International Air Transport Association, and any other relevant stakeholders to establish guidelines for public health measures associated with safe international travel, including on aircraft and at ports of entry. Any such guidelines should address quarantine, testing, COVID-19 vaccination, follow-up testing and symptom-monitoring, air filtration requirements, environmental decontamination standards, and contact tracing."
Section 5(c) Land Travel.
Section 5(c) requires DOS, in consultation with HHS and CDC, DOT, DHS to "immediately commence diplomatic outreach to the governments of Canada and Mexico regarding public health protocols for land ports of entry," and to submit a plan to the President "to implement appropriate public health measures at land ports of entry," that implements CDC guidelines, is consistent with applicable law, and takes into account operational considerations.
Section 5(d) Sea Travel.
Section 5(d) requires DHS, through the Coast Guard and in consultation with HHS and CDC, to submit a plan to the President to implement appropriate public health measures at sea ports, that implements CDC guidelines, is consistent with applicable law, and takes into account operational considerations.
Section 5(e) International Certificates of Vaccination or Prophylaxis.
Section 5(e) directs DOS, HHS, and DHS/TSA, in coordination with relevant international organizations, to assess "the feasibility of linking COVID-19 vaccination to International Certificates of Vaccination or Prophylaxis (ICVP) and producing electronic versions of ICVPs."
Notes on this executive order's reference to "periods of self-quarantine or self-isolation after entry into the United States"
Does this executive order impose a mandatory period of self-quarantine on travelers after they entry the United States?
Section 5(a) requires that "to the extent feasible, travelers seeking to enter the United States from a foreign country shall be ... required to comply with other applicable CDC guidelines concerning international travel, including recommended periods of self-quarantine or self-isolation after entry into the United States." Section 5(b)(D)(2) then directs relevant agencies to develop a plan for how the U.S. government "could implement the policy stated in subsection (a) of this section with respect to CDC-recommended periods of self-quarantine or self-isolation after a flight to the United States from a foreign country."
This wording is confusing, in that:
- It states travelers "shall be... required" to comply with "CDC-recommended periods of self-quarantine..." The concept of mandatory adherence to a recommendation is somewhat obtuse.
- The executive order requires this "to the extent feasible," without identifying concrete measures of feasibility
- Recognizing the challenges of implementing and enforcing a self-quarantine requirement, the executive order tells relevant agencies to develop an implementation plan, meaning that there was no such plan at the time the executive order was issued.
The reference to CDC self-quarantine recommendations is also not specified. The CDC maintains a web page titled After You Travel Internationally (last updated January 4, 2021), which is a likely referent. That page contains recommendations for all travelers and for higher-risk travelers, and is periodically updated. As of January 4, 2021 the page says:
"Regardless of where you traveled or what you did during your trip, take these actions to protect others from getting COVID-19," then lists social distancing, mask wearing, hand washing, and watching for symptoms.
The page then says:
"If you participated in higher-risk activities during your international travel, take the actions listed above AND do the following after travel:
- Get tested 3-5 days after travel AND stay home for 7 days after travel.
- Even if you test negative, stay home for the full 7 days.
- If your test is positive, isolate yourself to protect others from getting infected.
- If you don't get tested, it's safest to stay home for 10 days after travel.
- Avoid being around people who are at increased risk for severe illness for 14 days, whether you get tested or not.
Always follow state and local recommendations or requirements related to travel."
The page then lists the following "higher-risk activities" that would trigger the heightened recommendations:
"The following are some activities that put you at higher risk for COVID-19:
- Travel from a country or U.S. territory with a Level 2, Level 3, or Level 4 Travel Health Notice.
- Going to a large social gathering like a wedding, funeral, or party.
- Attending a mass gathering like a sporting event, concert, or parade.
- Being in crowds like in restaurants, bars, fitness centers, or movie theaters.
- Taking public transportation like trains or buses or being in transportation hubs like airports.
- Traveling on a cruise ship or river boat."
The CDC page also tells travelers to "[a]lways follow state and local recommendations or requirements related to travel." Many states, counties, and cities or towns have imposed state or local quarantine rules for people entering the state or locality. For example, New York's interim policy dated November 3, 2020 said: "All travelers entering New York from a state that is not a contiguous state, or from a CDC Level 2 or 3 Travel Health Notice country, shall quarantine for a period of 14 days, consistent with Department of Health regulations for quarantine, unless…", but then the New York advisory dated December 26, 2020 says: "Consistent with recent CDC guidance, quarantine for individuals exposed to COVID-19 can end after ten days without a testing requirement if no symptoms have been reported during the quarantine period."
Because airlines fly into so many countries and U.S. states which have such varied rules that are frequently updated, there are reports that some airlines require passengers to sign a blanket "contract" where the passenger promises that they will self quarantine after arrival, likely to proactively avoid having any problems landing in any city, state, or country.
Agency Responses to Executive Order 13988 of January 21, 2021
On February 4, 2021, CBP announced:
"Effective Feb. 2, U.S. Customs and Border Protection (CBP) is enforcing the requirement that travelers wear face masks at all air, land and sea ports of entry in the United States in accordance with President Biden’s Executive Order on Promoting COVID-19 Safety in Domestic and International Travel and the Centers for Disease Control and Prevention (CDC) Order Regarding the Requirement for Persons to Wear Masks While on Public Conveyances and at Transportation Hubs...With limited exceptions, travelers must wear a face mask while physically present at a U.S. air, land, or sea port of entry. CBP Officers will require travelers to temporarily lower their mask during the inspection process to verify their identity.
The new requirement applies to all persons older than 2 years of age. Per CDC guidelines:
- A properly worn mask completely covers the nose and mouth.
- Cloth masks should be made with two or more layers of a breathable fabric that is tightly woven (i.e., fabrics that do not let light pass through when held up to a light source).
- Masks should be secured to the head with ties, ear loops, or elastic bands that go behind the head. If gaiters are worn, they should have two layers of fabric or be folded to make two layers.
- Masks should fit snugly but comfortably against the side of the face.
- Masks should be a solid piece of material without slits, exhalation valves, or punctures.
With limited exceptions, travelers must wear a face mask while physically present at a U.S. air, land, or sea port of entry. CBP Officers will require travelers to temporarily lower their mask during the inspection process to verify their identity.
The mask requirement does not apply to persons with disabilities who cannot wear, or cannot safely wear, a mask due to a disability as defined by the Americans with Disabilities Act. The mask requirement also does not apply to individuals for whom wearing a mask would create a risk to workplace health, safety, or job duty.
Individuals on private conveyances such as personal vehicles are not required to wear a mask while driving, but must don a mask once they enter an air, land, or sea port facility. Drivers of commercial vehicles and trucks are also not required to wear a mask while driving if the driver is the sole occupant of the vehicle.
The mask requirement will remain in effect until further notice. Failure to comply with the mask requirement can result in denial of transport or other civil/criminal penalties under 18 U.S.C. 3559, 3571.
CBP urges all travelers to closely follow the CDC’s COVID-19 travel guidelines."