Florida goes to the Supreme Court

[TXRANCHER]

55 minutes ago, chengkp75 said:

The far more important part of the CDC's response to the Circuit Court's reversal is not about the mask mandate for public transportation.  It is:

 

"CDC also said cruise ships not following its order must abide by other requirements including "reporting of individual cases of illness or death and ship inspections and sanitary measures to prevent the introduction, transmission, or spread of communicable diseases."

 

This means that the CDC will fall back on the specific language of the Public Health Act, as required by Judge Merryday's ruling.  This allows the CDC to inspect and conduct health interviews with passengers and crew, every single cruise, and to detain the ship and passengers until the inspections and interviews are completed, as is specifically mandated by the PHA.  So, they are saying that if a cruise ship adheres to Judge Merryday's ruling that the CSO requirements are only voluntary, and are not being followed, then they will do what Judge Merryday wants, and apply the exact language of the PHA.  Turn around day will be chaos, and likely "turn around days".

 

 

Sorry but the rules in the PHA are not that broad.  They already gather the data from both planes and ships, do risk assessments and decide if there is sufficient reason to pull aside and question anyone more. It is all outlined in the 42 USC 264-269 and Quarantine and Isolation regulations in Part 70 and 71 of the 42 CFR.  But the important part is that if they follow these rules to the letter they have to do it on a case-by-case basis. People also have rights of appeal, to a third party doctor's opinion as to their illness and limtis on time to do all these things.  They can only detain a ship on which there is a proven outbreak, not just a suspicion of an outbreak and only until it is sanitized. They have the right to quarantine a ship there has an outbreak but it is spelled out as to what that is. Noehere do they get the right to issue mandates to the entire industry.  Nor do they have the right to issue moritoriums on evictions or masks on all transports. 

See 2018 VSP operations manual Page 178; Subsection 12.9 Recommendations That the Vessel Not Sail: “12.9.2 Procedures:  12.9.2.2 No Sail: “CDC will recommend or direct the master of a vessel not to sail when an IMMINENT HEALTH HAZARD is identified and cannot be immediately corrected. Such a recommendation will be signed by the VSP Chief, with concurrence of the Director, National Center for Environmental Health/Agency for Toxic Substances and Disease Registry or the Director’s designee.
 

2018 VSP Operations Manual, Section 12.0 Administrative Guidelines, Page 178, 12.9 Recommendations That the Vessel Not Sail, 12.9.1 Imminent Health Hazard “An IMMINENT HEALTH HAZARD will be determined to be, but not limited to, one of the following situations:

·         Free HALOGEN residual in the POTABLE WATER distribution system is less than 0.2 MG/L (ppm) and this deficiency is not corrected before the inspection ends.

·         Inadequate facilities for maintaining safe temperatures for POTENTIALLY HAZARDOUS FOOD.

·         Inadequate facilities for cleaning and sanitizing EQUIPMENT.

·         Continuous problems with liquid and solid waste disposal, such as inoperative or overflowing toilets or shower stalls in passenger and crew member cabins.

·         Infectious disease OUTBREAK among passengers or crew, and where it is suspected that continuing normal operations may subject newly arriving passengers to disease.

As for their authority it is as follows: 

2.1.1 Communicable Disease Prevention
2.1.1.1 Communicable Disease Prevention
Although cooperation by vessels with VSP is voluntary, the Public Health Service (PHS) is authorized by the Public Health Service Act (42 U.S.C. Section 264. QUARANTINE and Inspection - Regulations to control communicable diseases) to take measures necessary to prevent the introduction, TRANSMISSION, or spread of communicable diseases into the United States from a foreign country.

2.1.1.2 Regulation Promulgation
In addition, the Public Health Service Act (42 U.S.C. Section 269. QUARANTINE and Inspection - Bills of Health) authorizes the promulgation of regulations applicable to vessels for preventing the introduction into the United States of “any communicable disease by securing the best sanitary condition of such vessels, their cargoes, passengers, and crews.”
2.1.1.3 Inspections
Regulations promulgated to carry out these duties authorize PHS to conduct sanitary inspections on carriers traveling to a U.S. port from a foreign area (42 CFR Section 71.41. General Provisions, Foreign QUARANTINE - Requirements Upon Arrival at U.S. Ports: Sanitary Inspection). The purpose of the inspection is to determine the existence of vermin, contaminated FOOD or water, or other insanitary conditions that may contribute to the introduction, spread, or TRANSMISSION of communicable disease.  

What the Court found was the Conditional Sail Order was in excess of what was allowed by the PHS (CDC) to perform.  They can do sanitation inspections and they can do a quarantine of a ship with an outbreak. But this is limited to a case-by-case basis. Note that the Bill of Health section referenced above is not allowed in the implementing statutes:  42 C.F.R. §§71.11 Bills of Health - A carrier at any foreign port clearing or departing for any U.S. port shall not be required to obtain or deliver a bill of health.  The CDC has failed to enact statutes due to the fact they have eliminated any foreign port health officers.  

vsp_operations_manual_2018-508.pdf

[chengkp75]

Quite aware of what the VSP contains, as I worked under it for years.  However, if the CSO is ruled overreach, then the VSP would go away as well, since the two programs are essentially the same.  As you quote, the VSP is voluntary, but not adhering to it, means that the ship gets a sanitation inspection every time it applies for clearance, as you say, according to 42 CFR 71.41 (and nothing says it is only on a random basis (as is allowed by the VSP), but every time.  And, this is what the CDC is saying will happen to ships that don't adhere to the CSO.  And, you are correct, they can only detain a ship that has a proven outbreak, but they can detain a ship for the duration of the sanitation inspection, which typically takes 6-8 hours for a cruise ship.

 

You say that they don't have the authority to issue a mandate to an entire industry.  What is the VSP?  While not a mandate, it is a set of regulations that allow a ship to bypass the sanitary inspection every time it enters the US.  The CSO is a set of regulations that allows a cruise ship to obtain free pratique without a sanitary inspection every time, as well.  The CSO is no different than the VSP.

 

 

[kearney]

4 hours ago, TXRANCHER said:

I filed my motion to file an amicus brief with the Appeals Court dated Juky 16) but due to some issues with electronically filing it, (which was finally granted on Monday I did not get it filed until Monday July 19.) I was really disappointed the Appeals Court had not waited the allowed period for the Amicus Briefs to be filed to originally rule.  That is seven days after the party supported filed. Sinc mine supported Florida, it should have been the 19th.  

I later on Friday heard about the reversal (diect e-notice from appeals court) before I heard about the filing with the SCOTUS so it had me baffled for about an hour or so. Had my amicus brief really had that great an impact? Had they actually read it?  It almost made all I had been put through worth it.   But then I found out about the SCOTUS filing. (I even have a copy of it)  That along with the latest Moritorium ruling in another appeals court was more likely the motovator. Yet maybe my arguments, which I still think were valid, may have helped tip the scales. 

Also, as to the CDC trying to use their mask mandate to extort the cruise lines to follow their conditional sail order, they must be very careful for they were relying on the same part of 42 USC 264(a) to empower them on the mask mandate. Judge's ruling was they exceeded their power in not following the limitations in the next sentence in trying to impose "other measures" like the Conditional Sail order and not limiting those "other measures" related to the ones itemized in the statute, like deratting, inspections and sanitation measures.  I don't seem to recall requiring masks to be on that list. 

It is very possible that if that threat is real as reported by Reuters, and they have now brought this to bear in this case, the Judge might just rule that the CDC is in Contempt of his ruling and sanction them. That sort of action is really showing contempt, both for the District Court and the Appeals Court who now have sided with him.  Just my two cents from someone intimately familar with the case.  

Note there is nothing beign said about a virus in this post.   Might be in the State of Florida's SCOTUS filing that is attached, but I am not responsible for that content.  

   

21A5.pdf 429.98 kB · 5 downloads

Thanks for you update and perspective. As a non attorney... when I read the Reuters piece... it came across as the CDC giving the court the middle finger... with the cruise lines caught in the middle. Since protocols are in place and ships are sailing.. I don't see this as a risk to the cruise ships ... I don't believe they want to change things...at least not until the concerns for Delta variant settle down... if they do.

[gfountain1]

On 7/23/2021 at 6:19 PM, Jasukkie said:

There's such an easy solution. Require vaccination and drop everything else. 

Why use common sense when there are culture wars to wage?

[xpcdoojk]

On 7/24/2021 at 10:55 AM, dswallow said:

 

I think absent all the legal nonsense going on, most cruise lines would require everyone eligible for vaccination to be vaccinated and look to recommendations as to exactly how to handle those who aren't eligible to get vaccinated yet, perhaps just requiring masking under certain circumstances.

 

Picking 95% is somewhat arbitrary, and it apparently is already being discussed behind the scenes about dropping that to something more like 75% with regard to masking requirements in public indoor spaces, anyway.

 

The problem is all the adults who are eligible to be vaccinated but choosing not to do so yet demanding to go anywhere and everywhere who think they're entitled to be among those 5% or 25% unvaccinated portions of the manifest.

How about completely arbitrary?

[xpcdoojk]

6 hours ago, mayleeman said:

 

Those words do, however, demonstrate convincingly that your point is misguided. The CDC regulates health standards both aboard cruises and many other forms of transportation. They are giving cruiselines the opportunity to adhere to the CSO guidelines or be required to follow the same rules as every other commercial ship entering US waters.

 

You see it as a burden. Many thousands of people see it as an opportunity for cruising to continue without constant inspections and much more rigid rules.

 

Said a doctor to a misplaced jayhawk

[mayleeman]

13 minutes ago, xpcdoojk said:

misplaced jayhawk

 

No such thing! We are everywhere...

[Pratique]

13 hours ago, xpcdoojk said:

How about completely arbitrary?

Naw. Speed limits and building occupancy limits for fire safety are also arbitrary, but we've had a lot more experience with those than we have had with Covid. The inability to pick the "correct" number  (if it even exists) doesn't mean that we shouldn't set it at any number.

[BecciBoo]

17 hours ago, At Sea At Peace said:

 

MSC and other lines actual data have documented otherwise in countries with no where near the vaccine availability and levels in the states.

 

The CDC isn't working to keep passengers and crew as safe as possible, nor is the CDC even remotely concerned to do so in an environment which can also provide an enjoyable cruise experience.  Their filings indicate that they are protecting against a cruise ship based outbreak that will cripple US based health care ports.

Hogwash

[kearney]

17 hours ago, TXRANCHER said:

during the court case I contacted the AG's attorneys for Florida and Texas and stated I could not support their position on proof of vaccination.  My position is that the CDC should be following the IHR.  If they were following the IHR it allows them (the Competent Health Authority at the Port, could be state. could be federal based on your form of federalism) to ask for health history and that can include vaccination records.  Remember it has always been a requirement in some countries to have to show proof of vaccination against Yellow Fever.  I have one on my yellow International Certificate of Vaccination in 1997 so I could go to West Africa. I also have ten other immunizations received that were not required for entrance on my card. If the CDC were just to follow the IHR they could authorize the Cruise Lines to collect that information on their behalf and it would overrule the state law.  Even the Judge during the oral arguments in Tampa made that observation.  Yet the CDC's attorney admitted in open court they did not require it. They only required the Cruise lines to be able to prove to them that they met certain percentages of vaccinated crew and passengers to avoid the cost and delay of making test cruises.  So the CDC is the culprit in all this.    

  

I too have no issue with showing proof of vaccination. I do wish there was a common definition of what a 'vaccine passport' actually is. I don't like the idea of a centralized data base consolidating a lot of health, travel and other information... but having a standardized vaccine card.. I don't see as the same thing. Health care workers are required to get the flu vaccine... and to your point many countries require yellow fever vaccination. Yes there can be slippery slope issues...but if not in part of a consolidated data base with other personal information.. I don't see the issue. Also, let ships start out with at least some 100% vaccinated cruises and set a time frame for reconsideration and open up as the peak subsides. I really am not concerned about being around unvaccinated..but I do mind tight masking requirements indoors. I don't want to pay to have less freedom than I do at home.

[bouhunter]

18 hours ago, At Sea At Peace said:

 

MSC and other lines actual data have documented otherwise in countries with no where near the vaccine availability and levels in the states.

 

The CDC isn't working to keep passengers and crew as safe as possible, nor is the CDC even remotely concerned to do so in an environment which can also provide an enjoyable cruise experience.  Their filings indicate that they are protecting against a cruise ship based outbreak that will cripple US based health care ports.

What is a "US based health care port"?.........

[At Sea At Peace]

Back in the Middle District of Florida, the CDC/HHS/US has filed to Deny Florida's request for the Court to Enforce the Injunction.

 

 

 

 

 

 

 

 

 

[At Sea At Peace]

5 minutes ago, bouhunter said:

What is a "US based health care port"?.........

 

Apparently a poor combination of words.  Meant the health care resources and capacities at host cities of US ports that are used by cruise lines and would be subject to responding to outbreaks on cruise ships.

Edited July 26, 2021 by At Sea At Peace

[coffeebean]

19 hours ago, songbird1329 said:

I interpret it as the cruise lines voluntarily following CDC guidelines because the last thing their risk managers want is an outbreak on one of their ships followed by a lawsuit alleging negligence for failing to follow CDC guidelines.

So.......does a CDC guideline have a much power as a CDC mandate in a court of law. Asking because I know absolutely nothing about law.

[coffeebean]

19 hours ago, At Sea At Peace said:

 

MSC and other lines actual data have documented otherwise in countries with no where near the vaccine availability and levels in the states.

 

The CDC isn't working to keep passengers and crew as safe as possible, nor is the CDC even remotely concerned to do so in an environment which can also provide an enjoyable cruise experience.  Their filings indicate that they are protecting against a cruise ship based outbreak that will cripple US based health care ports.

OK. I will agree with you that the CDC doesn't give a rat's a$$ about an enjoyable cruise experience for anyone. Having said that, I do believe the CDC is looking out for the health and safety of everyone who sets foot on a cruise ship. Isn't that their job?

[coffeebean]

18 hours ago, TXRANCHER said:

during the court case I contacted the AG's attorneys for Florida and Texas and stated I could not support their position on proof of vaccination.  My position is that the CDC should be following the IHR.  If they were following the IHR it allows them (the Competent Health Authority at the Port, could be state. could be federal based on your form of federalism) to ask for health history and that can include vaccination records.  Remember it has always been a requirement in some countries to have to show proof of vaccination against Yellow Fever.  I have one on my yellow International Certificate of Vaccination in 1997 so I could go to West Africa. I also have ten other immunizations received that were not required for entrance on my card. If the CDC were just to follow the IHR they could authorize the Cruise Lines to collect that information on their behalf and it would overrule the state law.  Even the Judge during the oral arguments in Tampa made that observation.  Yet the CDC's attorney admitted in open court they did not require it. They only required the Cruise lines to be able to prove to them that they met certain percentages of vaccinated crew and passengers to avoid the cost and delay of making test cruises.  So the CDC is the culprit in all this.    

  

I don't see the CDC as a culprit at all. It's good to have options and that is exactly what the CDC offered to the cruise lines in order for them to conduct their businesses as they see fit. Test cruises and follow many burdensome protocols or no test cruises and sail with a minimum of 95% vaccinated passengers and no burdensome protocols. As I said, options are always good.

[drrich2]

58 minutes ago, coffeebean said:

As I said, options are always good.

Yes, and until Florida and Alaska really started turning up the political heat, the CDC wasn't doing that. The cruise lines were basically begging for realistic, practicable guidelines to restart cruising, and the CDC appeared to be giving them the brush off. 

And that was well after vaccines had become available in the U.S. Even if the CDC had said 'Okay, cruising is only okay with 100% vaccination rates and do a test cruise first,' prior to all that, at least it would've been something. 

So with some of us, the CDC bears the stigma of their obstructionism, which undermines what good faith/trust we might've otherwise regarded them with. 

I think it a fair statement that, for Florida, Alaska and the cruise industry, getting those options out of the CDC was, as they say, 'Like pulling teeth.'

[ArthurUSCG]

20 hours ago, livingonthebeach said:

 

Not sure the CDC has the manpower or budget to do what you describe. If they do, then all I can say is our "tax dollars at work" and how they are wasted.

I believe the manpower would continue to fall on the USCG and CBP for the administration of the PHA.

[Tony O]

On 7/25/2021 at 8:23 AM, kearney said:

I don't believe any of the current protocols violate the CSO... So I don't see why ships sailing with >95% vaccinated will now..suddenly.. have to mask..since the 95% level was set by the CDC... and cruise lines are following the protocols cdc set. I suspect that the CDC means that if they chose to do something different... that they will enforce the mask rules. So if a cruise line decided to have anyone sale regardless of vaccine status.. and they had more than 5% unvaccinated... CDC would clamp down. At least I hope that if ships are sticking to the now 'recommended' policy that the CDC isn't going to suddenly change the rules because they are pissed off.

This is part of the transit made requirements that that CDC has in place with the

different modes of transportation and it’s infrastructure 

[dswallow]

Completely separately, I really don't think that a cruise ship should be considered public transportation/conveyance in the same way trains and airlines and buses and ferries are considered. But that's another fight for another day. 🙂

[kearney]

15 minutes ago, dswallow said:

Completely separately, I really don't think that a cruise ship should be considered public transportation/conveyance in the same way trains and airlines and buses and ferries are considered. But that's another fight for another day. 🙂

They are more like a convention hotel...where attendees spend most of their time in a single facility..with significantly more space between people than a bus, train, plane or even a ferry

[Pratique]

3 hours ago, At Sea At Peace said:

Back in the Middle District of Florida, the CDC/HHS/US has filed to Deny Florida's request for the Court to Enforce the Injunction.

I think Florida is overplaying its hand by asking the court to hold CDC in contempt of the injunction.

 

Has the state actually talked to any of the cruise lines lately to ask how they are doing? It's starting to feel like the parties (at least Florida) are using the cruise lines as pawns in their escalating battle.

 

EDIT to add, the court has just deferred Florida's motion until there is evidence of a violation of the injunction.

Edited July 26, 2021 by Pratique

[At Sea At Peace]

43 minutes ago, Pratique said:

I think Florida is overplaying its hand by asking the court to hold CDC in contempt of the injunction.

 

SOP, all parties with qualified counsel play-the-hand.  In the current three cases, all parties have done the same.  It is what it is.

43 minutes ago, Pratique said:

Has the state actually talked to any of the cruise lines lately to ask how they are doing? 

 

To assume that there is not dialogue...

 

43 minutes ago, Pratique said:

It's starting to feel like the parties (at least Florida) are using the cruise lines as pawns in their escalating battle.

 

As the CDC/HHS/US have already used the cruise lines for 16 months?

 

43 minutes ago, Pratique said:

EDIT to add, the court has just deferred Florida's motion until there is evidence of a violation of the injunction.

 

Great.  

[At Sea At Peace]

3 hours ago, coffeebean said:

OK. I will agree with you that the CDC doesn't give a rat's a$$ about an enjoyable cruise experience for anyone. Having said that, I do believe the CDC is looking out for the health and safety of everyone who sets foot on a cruise ship. Isn't that their job?

 

And for those working at the CDC?

[chengkp75]

1 hour ago, dswallow said:

Completely separately, I really don't think that a cruise ship should be considered public transportation/conveyance in the same way trains and airlines and buses and ferries are considered. But that's another fight for another day. 🙂

 

1 hour ago, kearney said:

They are more like a convention hotel...where attendees spend most of their time in a single facility..with significantly more space between people than a bus, train, plane or even a ferry

Gee, so now everyone who has been saying that the cruise lines have been treated differently than an airline, now say that they are not the same.  Hmmm.  Just what the CDC said, they consider cruise ships to be "close residential" living.