Alaska is suing the CDC too

[nocl]

1 minute ago, kangforpres said:

Look, cruising will restart in the USA when the R factor of Covid-19 is less then 1, when total new daily infections are less than 10k and at least 50% of the adult population as been completely vaccinated. Lots of public health official's are throwing in the towel on any sort of "herd immunity" in the US. But the situation will improve enough so the Cruise Industry will be allowed to offer it's product again.

 

Will this be in July? probably not, but it should be achievable by September, hopefully Labor day weekend. 

 

-Paul

The cruise line could offer it today. All they need to do is get their port agreements in place, get approval for and execute the test cruises. Then they could sail from US ports in accordance with CDC requirements. Only thing stopping them from doing so is their lack of action on the agreements and plans.

[MTAK]

48 minutes ago, nocl said:

It still makes no difference in the order. Though the cruise lines could use full vaccination requirements in their port agreements to justify, in agreement with the ports, the need for only a few quarantine accommodations. Reducing the cost and complexity of those agreements. 

 

Just as they can include them their plans for restarting.

 

One can say that the CDC has not updated the order for vaccines that at this time they can only recommend, which they have, but not require.

 

Of course most cruise lines have not committed to requiring  vaccinations yet either.

In your opinion.  In my opinion, an order that is based on risk mitigation should take into account the most effective tool in reducing the spread of the virus, which is an approved vaccine. CDC doesn't have to require vaccine, only take into account the effects it has on these provisions.  It would be to their advantage to reevaluate this, as it would be more legally defensible (in my opinion) but it might also encourage someone like CCL to take the path of least resistance (i.e. require vaccinations).

 

Ultimately neither of our opinion matters at this point. Hopefully we'll find out who agrees with who sooner than later.

[MTAK]

12 minutes ago, nocl said:

Let me reverse this a bit. If Florida and Alaska were sure they had a case then how come they did not ask for a restraining order to all cruise ships to start up. Clearly if the judge believed their case to have merit and likely to win it would be granted due to the economic impact of waiting.

 

Just maybe one was not asked for, usually fairly standard request, because they were pretty sure one would not be granted and did not want it being declined to make the news.

It's April.  Vaccine availability is just now supposed to be available to anyone 16+.  I believe we are at the point of legal intervention as we speak, if the parties cannot agree to some sort of compromise.

[Daniel A]

24 minutes ago, nocl said:

Because it is boiler plate that is included in any similar regulation. FDA uses the same language and I suspect so do most other agencies. The intent is to make sure that a minor issue with one portion does not invalidate an entire regulation. Pretty standard language. Just shows that their legal team did their job prior to publication.

No, what it shows is that their legal team recognized the CDC is answerable to a higher authority and did its job knowing such to be the case.  I acknowledged that it was boilerplate in my prior post.  (I also liked the way you categorized the need being due to a minor issue being invalidated.  Of course, it could also be several major issues as well.  🙂)

 

18 minutes ago, nocl said:

If Florida and Alaska were sure they had a case then how come they did not ask for a restraining order to all cruise ships to start up. 

Just maybe one was not asked for, usually fairly standard request, because they were pretty sure one would not be granted and did not want it being declined to make the news.

They did ask for both preliminary and permanent injunctive relief enjoining enforcement of the Order from CDC.

 

See:  Fla+v+HHS+and+CDC+complaint.pdf (myfloridalegal.com)   (Page 20)

Edited April 22, 2021 by Daniel A

[harkinmr]

2 hours ago, MTAK said:

Sorry, I will probably be scoffed for this, but since the CDC order does not even consider the availability and use of vaccines, I don't think it's a stretch for a judge to intervene.

 

Does this mean the order would be rescinded and cruising would immediately resume? No, chances are the judge would order the CDC to update the document within a certain time frame.

That is not true.  The CDC included a vaccine impact in their technical instructions when they were issued. 

 

A judge is not going to second guess the CDC in that way.  As others have said here, wide deference is given to governmental agencies in the interest of public health.  IF the court were willing to intervene, the judge could require that the CDC revisit the order and work out "reasonable" requirements for the restart with the cruise lines.  What's "reasonable" is still going to be governed by the public health mandate given to the CDC. 

 

The ironic part is that as of April 12th, the CDC and the cruise lines were sitting down to do just that.  By the time the Florida and Alaska lawsuit(s) wind their way through the courts, cruising will have restarted.

[ontheweb]

55 minutes ago, Daniel A said:

Just as an addendum, if the CDC were as confident as you are that a Judge wouldn't touch the CDC regulations with a ten foot pole, then why did CDC's lawyers feel the need to insert the following language into the Framework?

 

"If any provision in this Order, or the application of any provision to any carriers, persons, or circumstances, shall be held invalid, the remainder of the provisions or the application of such provisions to any carriers, persons, or circumstances other than those to which it is held invalid shall remain valid and in effect."   -  See page 19 of the Framework Order.

 

Obviously the CDC's lawyers wanted this boilerplate language inserted in case some of the framework is deemed 'invalid.'  Even CDC recognizes that anything is possible when a case is argued before a Court and they are looking to minimize potential damage to their Order (Framework.)  Thus, even the CDC recognizes they are not omnipotent even during a pandemic.

That is easy. Lawyers are paid to put in that sort of boiler plate language. If you look, I'm sure you will find it in all their orders. It makes sure one little provision or even misspelling does not invalidate an entire order.

 

 

 

[MTAK]

8 minutes ago, harkinmr said:

That is not true.  The CDC included a vaccine impact in their technical instructions when they were issued. 

 

 

Where? The only reference to vaccine I have found in the technical instructions is:

 

"Explore options to vaccinate crew for COVID-19. This includes encouraging crew to get the COVID-19 vaccine when eligible and the vaccine is available."

 

This is not in any way an evaluation of risk reduction, or "impact".

[harkinmr]

1 hour ago, Daniel A said:

Just as an addendum, if the CDC were as confident as you are that a Judge wouldn't touch the CDC regulations with a ten foot pole, then why did CDC's lawyers feel the need to insert the following language into the Framework?

 

"If any provision in this Order, or the application of any provision to any carriers, persons, or circumstances, shall be held invalid, the remainder of the provisions or the application of such provisions to any carriers, persons, or circumstances other than those to which it is held invalid shall remain valid and in effect."   -  See page 19 of the Framework Order.

 

Obviously the CDC's lawyers wanted this boilerplate language inserted in case some of the framework is deemed 'invalid.'  Even CDC recognizes that anything is possible when a case is argued before a Court and they are looking to minimize potential damage to their Order (Framework.)  Thus, even the CDC recognizes they are not omnipotent even during a pandemic.

That is common legalese put into any contract, agreement, regulation or governmental order.  It is a catch-all that allows each provision to stand on its own.  It is not a recognition of any weakness in the framework or its provisions.  It also does not in any way demonstrate that the CDC is unsure in it's mandate or authority.

[harkinmr]

6 minutes ago, MTAK said:

Where? The only reference to vaccine I have found in the technical instructions is:

 

"Explore options to vaccinate crew for COVID-19. This includes encouraging crew to get the COVID-19 vaccine when eligible and the vaccine is available."

 

This is not in any way an evaluation of risk reduction, or "impact".

Because the are still evaluating the risk reduction and impact as it might relate to cruising.

 

You stated in your prior post that the CDC had not recognized that vaccines could impact the restart in their order. They did. You may just be unhappy that they have not specified exactly how.  They will.

 

COVID-19 vaccination efforts will be critical in the safe resumption of passenger operations. As more people are fully vaccinated, the phased approach allows CDC to incorporate these advancements into planning for resumption of cruise ship travel when it is safe to do so. CDC recommends that all eligible port personnel and travelers (passengers and crew) get a COVID-19 vaccine when one is available to them.

[chengkp75]

3 hours ago, Daniel A said:

I don't recall an in excess 12 hour mandated turn around period having been out there for a year.  The framework has only existed for six months.  I don't think the issue in the court is going to be whether or not the industry is formulating action plans.  It is going to be are the requirements known, justifiable and up to date

You are correct, and not correct.  There is not a "12 hour mandated turn around period", even in the original "framework", it was merely that port facilities be segregated between embarkation and debarkation for a minimum of 12 hours.  But let that lie.

 

The basic requirements of the "framework" for CSO are the exact same as those posted back in April 2020 in the NSO.  These have not changed, and the cruise lines knew these, and could have been working on ideas to meet them, a year ago.

 

The "12 hour rule" and the "framework" in its entirety came about because the cruise lines failed to submit action plans months ago.  As anyone who has worked in a regulated industry will tell you, each company, and in some cases, each plant or store in that company, will come up with an action plan on how to meet the regulations.  These are submitted to the regulators for review and approval or returned for revision.  Also, the industry as a whole will generally get together to meet with the regulators to tell the regulators what is considered industry "best practices", and these "best practices" can then be incorporated in the regulations, if they meet the requirements.  Do you really think that the CDC set out all of the practices in the VSP, down to mandating the types of screws that can be used in food handling equipment?  No.  They required equipment that is "easy to clean", and the cruise lines and the food service equipment manufacturers came up with the non-slotted screw, which is now required.

 

There was nothing that kept the cruise lines from promulgating a plan (how much does just a plan cost?), and submitting it back last June for approval, and then revising it to meet more direct CDC instructions in some areas, but getting approval in other areas.  Nothing at all.  That was how the VSP was developed, they didn't wait for detailed "technical instructions" before submitting plans and ideas.

[Daniel A]

38 minutes ago, ontheweb said:

That is easy. Lawyers are paid to put in that sort of boiler plate language. If you look, I'm sure you will find it in all their orders. It makes sure one little provision or even misspelling does not invalidate an entire order.

 

26 minutes ago, harkinmr said:

That is common legalese put into any contract, agreement, regulation or governmental order.  It is a catch-all that allows each provision to stand on its own.  It is not a recognition of any weakness in the framework or its provisions.  It also does not in any way demonstrate that the CDC is unsure in it's mandate or authority.

I'm well aware of what boilerplate language is and the function it serves.  I expected it to be in there, that is why I went looking for it.  The point of me showing that language was to demonstrate that even the mighty CDC recognizes the possibility of a higher authority invalidating one or more of its provisions.  It compartmentalizes and separates various provisions so that in case one or more provisions fail the entire document (Law, Contract, Regulation, Order Settlement, Plea Bargain etc...) does not fail.  As far as demonstrating weakness, my whole point is it shows that the CDC and HHS recognize they are not the ultimate decision maker.  (Unlike some on CC...)

 

It is not there to mitigate the damage of a misspelling or 'little provisions'  alone.  It's in there because they recognize that a Court could invalidate some (or all) of the provisions of the order.  Big as well as small.

[chengkp75]

1 hour ago, nocl said:

The cruise line could offer it today. All they need to do is get their port agreements in place, get approval for and execute the test cruises. Then they could sail from US ports in accordance with CDC requirements. Only thing stopping them from doing so is their lack of action on the agreements and plans.

And, if the ports and health care systems felt that the risk of a serious outbreak on a cruise ship would be very low, due to vaccination, then the cost to provide "standby" "just in case" health care, transportation, and quarantine, would be small potatoes to the cruise line, and a windfall to the providers, since they would never need to provide the service being paid for, kind of like insurance.  Yet, no one has gotten these agreements and contracts in place, so it appears to me that many feel the cost to be prohibitive.

[HamOp]

3 hours ago, Daniel A said:

 

 

 

 

 What matters is the opinion of an individual wearing a black robe in a Federal Courthouse.

Better hope for a federal judge that loves to cruise 😁

 

[Daniel A]

6 minutes ago, chengkp75 said:

You are correct, and not correct.  There is not a "12 hour mandated turn around period", even in the original "framework", it was merely that port facilities be segregated between embarkation and debarkation for a minimum of 12 hours.  But let that lie.

 

The basic requirements of the "framework" for CSO are the exact same as those posted back in April 2020 in the NSO.  These have not changed, and the cruise lines knew these, and could have been working on ideas to meet them, a year ago.

 

The "12 hour rule" and the "framework" in its entirety came about because the cruise lines failed to submit action plans months ago.  As anyone who has worked in a regulated industry will tell you, each company, and in some cases, each plant or store in that company, will come up with an action plan on how to meet the regulations.  These are submitted to the regulators for review and approval or returned for revision.  Also, the industry as a whole will generally get together to meet with the regulators to tell the regulators what is considered industry "best practices", and these "best practices" can then be incorporated in the regulations, if they meet the requirements.  Do you really think that the CDC set out all of the practices in the VSP, down to mandating the types of screws that can be used in food handling equipment?  No.  They required equipment that is "easy to clean", and the cruise lines and the food service equipment manufacturers came up with the non-slotted screw, which is now required.

 

There was nothing that kept the cruise lines from promulgating a plan (how much does just a plan cost?), and submitting it back last June for approval, and then revising it to meet more direct CDC instructions in some areas, but getting approval in other areas.  Nothing at all.  That was how the VSP was developed, they didn't wait for detailed "technical instructions" before submitting plans and ideas.

You may be right with all that you have said.  We are not going to make the final decision on this although it is an interesting discussion.  But as I'm sure you are aware, 'common sense' often does not prevail in a courtroom.  You make a strong argument.  Now, my question is, putting aside past practices, do you know if any of the requirements in any of the NSOs or the Framework have specific language that directs cruise lines to submit detailed plans to the CDC in order to comply with the mandates imposed by the CDC?  I seem to recall the framework mentioning CDC issuance of vague future technical guidance documents, but I don't recall a requirement to submit comprehensive compliance plans.  (It may be in there but I just don't recall seeing that.)

[harkinmr]

6 minutes ago, Daniel A said:

 

I'm well aware of what boilerplate language is and the function it serves.  I expected it to be in there, that is why I went looking for it.  The point of me showing that language was to demonstrate that even the mighty CDC recognizes the possibility of a higher authority invalidating one or more of its provisions.  It compartmentalizes and separates various provisions so that in case one or more provisions fail the entire document (Law, Contract, Regulation, Order Settlement, Plea Bargain etc...) does not fail.  As far as demonstrating weakness, my whole point is it shows that the CDC and HHS recognize they are not the ultimate decision maker.  (Unlike some on CC...)

 

It is not there to mitigate the damage of a misspelling or 'little provisions'  alone.  It's in there because they recognize that a Court could invalidate some (or all) of the provisions of the order.  Big as well as small.

Contracts and governmental regulations are not written by lawyers or government agencies anticipating that any of the provisions of the same will be held invalid.  There is always consideration given to the legal validity of provisions before inserting them in the first place.  Know that well from 30 years of drafting legal agreements.  Are there challenges to contracts and governmental regulations?  Yes.  But those contracts and regulations are drafted with certainty as to their enforceability.

 

 

[chengkp75]

6 minutes ago, Daniel A said:

You may be right with all that you have said.  We are not going to make the final decision on this although it is an interesting discussion.  But as I'm sure you are aware, 'common sense' often does not prevail in a courtroom.  You make a strong argument.  Now, my question is, putting aside past practices, do you know if any of the requirements in any of the NSOs or the Framework have specific language that directs cruise lines to submit detailed plans to the CDC in order to comply with the mandates imposed by the CDC?  I seem to recall the framework mentioning CDC issuance of vague future technical guidance documents, but I don't recall a requirement to submit comprehensive compliance plans.  (It may be in there but I just don't recall seeing that.)

The wording of the NSO and CSO clearly state that in order for a ship to "continue to obtain free pratique" (i.e. to get a clearance to enter US waters) the ship would have to meet the requirements set forth, submitting a plan for how to do this.  If you google the CDC NSO, and find it on the CDC website, go to page 6 of the April 2020 revision, and you will see under order #3, a list of 14 specific areas to be addressed in the plan.  And, in the paragraphs above this list, it says that the cruise line's plan must be "appropriate, actionable, and robust". (Sorry the CDC's PDFs don't allow cut and paste).  The language says that the requirements listed may be clarified by technical instructions at a future date.

[Daniel A]

7 minutes ago, harkinmr said:

Contracts and governmental regulations are not written by lawyers or government agencies anticipating that any of the provisions of the same will be held invalid.  There is always consideration given to the legal validity of provisions before inserting them in the first place.  Know that well from 30 years of drafting legal agreements.  Are there challenges to contracts and governmental regulations?  Yes.  But those contracts and regulations are drafted with certainty as to their enforceability.

Were you ever involved in the process of promulgating government regulations?  Government very often pushes out regulations the tend to exceed their authority.  I've seen it in 40+ years of government experience at the Federal, County and Local levels.  The problem at hand is the individuals drafting the documents don't need to pay the legal fees and court costs - that job falls onto you and me so they lose nothing if some or all of the regulations get pushed out.  

 

Just like the taxpayers are footing the legal bill for both sides of this lawsuit.

[harkinmr]

6 minutes ago, Daniel A said:

Were you ever involved in the process of promulgating government regulations?  Government very often pushes out regulations the tend to exceed their authority.  I've seen it in 40+ years of government experience at the Federal, County and Local levels.  The problem at hand is the individuals drafting the documents don't need to pay the legal fees and court costs - that job falls onto you and me so they lose nothing if some or all of the regulations get pushed out.  

 

Just like the taxpayers are footing the legal bill for both sides of this lawsuit.

"Very often".  I would hardly say that.  And certainly not with clear intention to exceed their authority.  They know what the risks are. 

 

Now with federal, state and local legislative actions, I would say it could be more common although I think it is generally still done with some assurance of authority.  But certainly not always.  A perfect example is Governor DeSantis' executive order on vaccine passports and his assertion that he can enforce a ban on vaccine mandates by private businesses, including the cruise lines.  That portion of his order is likely unenforceable against the cruise lines, but it hasn't stopped him from asserting otherwise. The order and the prospective legislation will likely suffer challenges because it is a new area of the law. 

 

You're absolutely right about who is paying for the lawsuits.  And I get to pay for it on both sides as a resident of Florida and a US taxpayer.  And don't think that doesn't tick me off!

[nocl]

50 minutes ago, HamOp said:

Better hope for a federal judge that loves to cruise 😁

 

well the plaintive gets to pick the venue they filed in so one would expect the one they thought they would get the most favorable response.

 

No temporary restraining order yet so maybe not that favorable.

[harkinmr]

13 minutes ago, nocl said:

well the plaintive gets to pick the venue they filed in so one would expect the one they thought they would get the most favorable response.

 

No temporary restraining order yet so maybe not that favorable.

I don't believe they asked for a restraining order.  That was not likely to be granted.  They asked that the CSO be declared void as exceeding the CDC"s authority.  In the alternative, they want the court to order that the CDC amend its order with "reasonable" requirements for a cruise restart by July.

[Daniel A]

2 minutes ago, harkinmr said:

I don't believe they asked for a restraining order.  That was not likely to be granted.  They asked that the CSO be declared void as exceeding the CDC"s authority.  In the alternative, they want the court to order that the CDC amend its order with "reasonable" requirements for a cruise restart by July.

They definitely requested preliminary and permanent injunctions in the. Fililng.

[MTAK]

50 minutes ago, chengkp75 said:

The wording of the NSO and CSO clearly state that in order for a ship to "continue to obtain free pratique" (i.e. to get a clearance to enter US waters) the ship would have to meet the requirements set forth, submitting a plan for how to do this.  If you google the CDC NSO, and find it on the CDC website, go to page 6 of the April 2020 revision, and you will see under order #3, a list of 14 specific areas to be addressed in the plan.  And, in the paragraphs above this list, it says that the cruise line's plan must be "appropriate, actionable, and robust". (Sorry the CDC's PDFs don't allow cut and paste).  The language says that the requirements listed may be clarified by technical instructions at a future date.

Tip, if you go to the Federal Register site, you can copy and paste.

[MTAK]

2 hours ago, harkinmr said:

Because the are still evaluating the risk reduction and impact as it might relate to cruising.

 

You stated in your prior post that the CDC had not recognized that vaccines could impact the restart in their order. They did. You may just be unhappy that they have not specified exactly how.  They will.

 

COVID-19 vaccination efforts will be critical in the safe resumption of passenger operations. As more people are fully vaccinated, the phased approach allows CDC to incorporate these advancements into planning for resumption of cruise ship travel when it is safe to do so. CDC recommends that all eligible port personnel and travelers (passengers and crew) get a COVID-19 vaccine when one is available to them.

Where are you finding this? I cannot find this language in the CSO or the Technical Instructions.

 

They should inform the cruise lines they are in the process of evaluating it, and at least provide an approximate timeline.  That would be a great start to their discussions.

[harkinmr]

7 minutes ago, Daniel A said:

They definitely requested preliminary and permanent injunctions in the. Fililng.

I stand corrected.  They requested injunctive relief, but not a restraining order.  Because injunctions are only available when there is no other remedy available, I still believe that that sort of relief will not be granted.  From reading the filing, it looks like their primary interest is in getting the CSO lifted in its entirety.  I say good luck with that. "Arbitrary and capricious agency action".  No. Not within the context of a pandemic.  The filing talks about financial damages to the cruise lines, but that is nothing new.  They have been suffering financial damages since March of 2020.  As have other businesses nationwide.  I would be more impressed if Florida had brought this action last Summer or Fall.  But this is politically motivated in large part, so it didn't serve the Governor's purpose then.  I still believe that there will be a cruise restart long before this lawsuit is ever resolved.  JMO.

 

[harkinmr]

13 minutes ago, MTAK said:

Where are you finding this? I cannot find this language in the CSO or the Technical Instructions.

 

They should inform the cruise lines they are in the process of evaluating it, and at least provide an approximate timeline.  That would be a great start to their discussions.

It's in the CSO quote I included.  They have informed the cruise lines that they are in the process of evaluating it and are working with them on that and other CSO matters.  That is what their April 12th meeting was all about.  The CDC's statement on the meeting said they are working with the cruise lines towards a mid-July restart.  You are not going to get an absolute date.