By Rich Juliano, general counsel, ARTBA

The Cybersecurity and Infrastructure Security Agency (CISA), part of the U.S. Department of Homeland Security, issued March 28 a revised version of its “Memorandum on Identification of Essential Critical Infrastructure Workers during COVID-19 Response.” The guidance is significant because numerous governors have incorporated or referenced it in designating “essential” industries or businesses exempt from their stay-at-home orders.

While the previous “1.1” edition of the guidance included references to public works and other forms of transportation infrastructure, ARTBA and various coalition partners have urged CISA to add terminology in their “2.0” version related to transportation construction and related industries, including through a March 20 group letter to President Trump. ARTBA is also part of CISA stakeholder briefings taking place multiple times per week.

As the agency’s memo explains:

This list is advisory in nature. It is not, nor should it be considered, a federal directive or standard. Additionally, this advisory list is not intended to be the exclusive list of critical infrastructure sectors, workers, and functions that should continue during the COVID-19 response across all jurisdictions. Individual jurisdictions should add or subtract essential workforce categories based on their own requirements and discretion.

This reiterates the fact that state officials – generally governors – have the final call as to who is considered “essential” in their respective states.

The revised guidance encompasses 17 categories and has added many new work areas.  Among those of interest to ARTBA members…

  • Transportation and Logistics
    • Workers supporting the… [m]aintenance and operation of essential highway infrastructure, including roads, bridges, and tunnels (e.g., traffic operations centers and moveable bridge operators).
    • Mass transit workers and providing critical transit services and/or performing critical or routine maintenance to mass transit infrastructure or equipment.
    • Workers responsible for… maintaining rail infrastructure and equipment.
    • Employees who repair and maintain… the equipment and infrastructure that enables operations that encompass movement of cargo and passengers.
  • Public Works and Infrastructure Support Services
    • Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including bridges,… construction of critical or strategic infrastructure, traffic signal maintenance, emergency location services for buried utilities,… and other emergent issues.
    • Workers who support, such as road and line clearing, to ensure the availability of and access to needed facilities, transportation, energy and communications.
  • Critical Manufacturing
    • Workers necessary for the manufacturing of metals (including steel and aluminum), industrial minerals, semiconductors, materials and products needed… for supply chains associated with transportation… Additionally, workers needed to maintain the continuity of these manufacturing functions and associated supply chains, and workers necessary to maintain a manufacturing operation in warm standby.
    • Workers necessary for mining and production of critical minerals, materials and associated essential supply chains, and workers engaged in the manufacture and maintenance of equipment and other infrastructure necessary for mining production and distribution.

Please contact Rich Juliano, Dean Franks or Nick Goldstein with any questions or information about the CISA guidance, its use by the states or possible new additions to or clarifications of the list.