( my intent is
not to spawn debate on the CDC as that will get this thread shut down (so please don't!!); merely to add some information to the equation of what will inform the ultimate decisions about what cruising is going to look like; below are some of the CDC's rationale for the No Sail Order, which presumably will therefore inform their decision-making when the order is lifted and whatever new rules they put in place are put in place.
The Safely Returning to Sailing proposal and the CILA proposal from the cruise lines addresses some of these issues, whether intentionally or not. It will be interesting to see if the Safely Returning to Sailing & CILA proposals are sufficient or if CDC's eventual rules will be more stringent. Ultimately, in terms of lifting the NSO, the question is, can the hurdles identified below be sufficiently mitigated by things like the Safely Returning to Sailing and CILA proposals, or will it still be considered insufficient at the current time ?
So, ignore whether you think the CDC is right or wrong or what you think about them issuing the NSO in the first place etc etc etc --
THIS IS NOT THE PLACE FOR THOSE DISCUSSIONS.
Instead -- limit any discussion of this to the stated rational on its face [whether you like it or agree with it or not, it is what it is stated is they believe to be the reasons] and what implications that may have, especially when combined with the Safely Returning to Sailing and CILA proposals. )
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(warning this is very long)
In looking at cruise-related publications in the Federal Registry, I came across this one from September 11:
Control of Communicable Diseases; Foreign Quarantine: Suspension of the Right To Introduce and Prohibition of Introduction of Persons Into United States From Designated Foreign Countries or Places for Public Health Purposes
A Rule by the Health and Human Services Department on 09/11/2020
https://www.federalregister.gov/doc...tine-suspension-of-the-right-to-introduce-and
AGENCY:
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
ACTION:
Final rule.
SUMMARY:
The Department of Health and Human Services (HHS) issues this final rule to amend the Foreign Quarantine Regulations administered by the Centers for Disease Control and Prevention (CDC). This final rule provides a procedure for the CDC Director to suspend the right to introduce and prohibit introduction, in whole or in part, of persons from such foreign countries or places as the Director shall designate in order to avert the danger of the introduction of a quarantinable communicable disease into the United States, and for such period of time as the Director may deem necessary for such purpose.
DATES:
This final rule is effective on October 13, 2020.
There are several parts in it that discuss the rationale behind the No Sail Order for cruising, and that I think will therefore inform some of the decision-making that are going to go in to the CDC's lifting of that order [having this final rule in place will be one piece of the puzzle] and the rules that are going to come with lifting it.
Some of what the cruise lines have proposed also speak to some of the issues, though it isn't clear how much rationale they may or may not have been given by CDC when the No Sail Order was issued.
Here are some of the quotes, there are others.
QUOTE 1:
HHS/CDC actions regarding cruise ships are another example of how preventing the movement of potentially exposed persons into the United States has slowed the introduction of COVID-19 into the United States. In early 2020, cruise ships carrying thousands of crew and passengers were continuing to travel between international ports. As crew and passengers became infected with COVID-19, disembarkation in major U.S. port cities presented a danger of introduction of COVID-19 into the United States. HHS/CDC and other Federal, state, and local agencies deployed hundreds of personnel to disembark and quarantine or isolate travelers. This intervention averted the danger presented by those travelers who entered quarantine or isolation at Federal sites, but it was not sustainable operationally because of the resources needed to maintain it. Nor did such efforts mitigate COVID-19 transmission on cruise ships generally, or the continuing risk of cruise ships introducing COVID-19 into U.S. ports. HHS/CDC therefore exercised its authorities under sections 361 and 365 of the PHS Act to issue a No Sail Order and Suspension of Further Embarkation (85 FR 16628), published on March 14, 2020,[8] to “prevent the spread of disease and ensure cruise ship passenger and crew health.”
QUOTE 2:
During the same time frame, cruise ships—including the Diamond Princess (Asia), the Grand Princess (California to Mexico, California to Hawaii), the Ruby Princess (Australia), and seven Nile River cruise ships—were associated with a number of COVID-19 clusters and outbreaks.[44] In February 2020, the Diamond Princess experienced what, at the time, was the largest cluster of COVID-19 cases outside of PRC and included a number of U.S. citizens. HHS/CDC, the Department of State and other agencies repatriated approximately 329 travelers from the Diamond Princess to the United States, where they entered quarantine or isolation at Federal sites.[45] Following an outbreak onboard the U.S.-bound Grand Princess in March 2020, HHS/CDC and other agencies conducted a massive operation to disembark and quarantine or isolate approximately 2,000 travelers from the Grand Princess at Federal sites. Approximately 2,300 individuals entered quarantine or isolation at Federal sites from the repatriations and disembarkations from the Diamond Princess and Grand Princess cruise ships.
To the best of HHS/CDC's knowledge, the combined Federal quarantine and isolation of individuals from the cruise ships and flights from Hubei Province, constitute the largest and most burdensome Federal quarantine and isolation operation in modern American history. Quarantine sites required support staffs of hundreds of Federal personnel and contractors working around-the-clock. The entire operation lasted approximately eight weeks and consumed thousands of working hours.
One of the key agency components of the operation was the National Disaster Medical System (NDMS), which is a federal partnership (between HHS, DOD, VA, and DHS) led by HHS/ASPR. NDMS includes a cadre of approximately 5,000 part-time Federal employees who are civilian doctors, nurses, and other healthcare professionals, and who are activated for short-term, two-week deployments in response to natural disasters and other emergencies.[46] The NDMS leverages healthcare personnel in jurisdictions unaffected by the emergency by temporarily federalizing those individuals so they may operate where local resources are overtaxed.[47] A more protracted operation may have deprived State and local health systems of the services of the NDMS personnel for extended periods of time during the COVID-19 pandemic. It would also have limited the ability of HHS/ASPR to Start Printed Page 56431re-deploy the NDMS to other emergencies (e.g., hurricanes).
Moreover, hundreds of other Federal personnel from HHS agencies—including ASPR, CDC, and the U.S. Public Health Service—were deployed for quarantine and isolation operations. The U.S. Departments of Homeland Security, Defense, and State also contributed personnel and resources. During a public health emergency, many of the agency personnel would ordinarily perform Federal coordinating functions. A more expansive or protracted field operation would have jeopardized the ability of some of the agencies to perform their ordinary functions.
While the Federal quarantine and isolation operation addressed the immediate risk of individual repatriates and cruise ship travelers introducing COVID-19 into the United States, it was not a prospective solution. That is, it did not address the continuing risk of COVID-19 transmission onboard cruise ships. Nor did it address the continuing risk of cruise ships or other vessels introducing COVID-19 into the United States in the future. An ongoing Federal quarantine and isolation operation was not a scalable or sustainable option for mitigating either of those continuing risks given the finite resources of the relevant Federal agencies and the other pressing demands of the COVID-19 pandemic response.
As explained below, CDC's experience with the Federal quarantine and isolation orders and the resulting operation has informed its decision-making regarding its No Sail Order for cruise ships, its Order prohibiting the introduction of covered aliens into the United States, and ultimately this final rule.
QUOTE 3: START QUOTE
c. The CDC No Sail Order for Cruise Ships
In March 2020, the risk of cruise ships introducing COVID-19 into the United States remained despite the Federal quarantine or isolation of thousands of cruise ship travelers. To address this ongoing concern, on March 14, 2020, the Director issued a No Sail Order under sections 361 and 365 of the PHS Act and
42 CFR 70.2 and 71.32 for all cruise ships of a certain capacity with itineraries anticipating an overnight stay for passengers or crew that had not voluntarily suspended operation.[
48] This No Sail Order was subsequently modified and extended, effective April 15, 2020,[
49] and again on July 16, 2020,[
50] to include cruise ships that had previously voluntarily suspended operations, as well as requiring additional measures to prevent the further introduction, transmission, and spread of disease. The current No Sail Order remains in place until September 30, 2020, or until the expiration of the Secretary's declaration that COVID-19 constitutes a public health emergency, or the Director rescinds or modifies the Order based on specific public health or other considerations, whichever occurs first.
As noted above, the No Sail Order was issued, in part, under section 361(a) of the PHS Act. Section 361(a) is a sweeping grant of authority permitting the Director to “make and enforce such regulations as in his judgment are necessary to prevent the
introduction . . . of communicable diseases from foreign countries into the States or possessions[ ].” (emphasis added). One of those regulations,
42 CFR 71.32(b), is equally broad. It states that “[w]henever the Director has reason to believe that any arriving carrier . . . is or may be infected or contaminated with a communicable disease, he/she may require detention, disinfection, disinfestation, fumigation, or other related measures respecting the carrier . . . as he/she considers necessary to prevent the
introduction . . . of communicable diseases.” (emphasis added).
In the No Sail Order, the Director determined that he had “reason to believe that cruise ship travel may continue to introduce, transmit, or spread COVID-19.” That determination rested partly on the Director's observation that numerous structural and operational features of cruise ships increase the risk of COVID-19 transmission onboard.[
51] First, passengers and crew intermingle closely in semi-enclosed spaces. Second, cruises host events that bring passengers and crew together in congregate settings, including group and buffet dining, entertainment, and excursions. Third, cruise ship cabins are small, increasing the risk of transmission between cabin mates. Fourth, crew members typically eat and sleep in small, crowded spaces. The infection of crew members may lead to transmission on sequential cruises, as the crew members work and live in close quarters from one cruise to the next.[
52]
The Director also observed that cruise ships may spread COVID-19 to ports of call and passengers' home communities. During a cruise, disembarkation of passengers at sequential ports of call may spread COVID-19 to the residents of those ports. Once the cruise ends, passengers or crew who reside in either the United States or a foreign country may travel home by airplane. Any infected passengers or crew may spread COVID-19 to others while traveling home, or upon returning home, with the end result being interstate spread of COVID-19.[
53]
Finally, the Director observed that “[q]uarantine and isolation measures are difficult to implement effectively onboard a cruise ship and tend to occur after an infection has already been identified onboard a cruise. If ships are at capacity, it may not be feasible to separate infected and uninfected persons onboard the ship, particularly among the crew. Crew must keep working to keep a ship safely operating, so effective quarantine for crew is particularly challenging.” [
54]
As part of his analysis, the Director also considered the risks to the healthcare system in the United States, and the limited government resources available for the response to COVID-19. HHS/CDC's recent experience was that the medical needs of persons with severe disease may be significant. Disembarkations of large numbers of passengers and crew with severe disease could increase the strain of COVID-19 on healthcare systems serving port cities, and divert healthcare resources and supplies away from local communities. Additionally, HHS/CDC's recent experience was that repatriating and quarantining or isolating travelers involved complex logistics, imposed financial costs on all levels of government, and diverted agency leadership, staff, and resources away from other aspects of the response to the COVID-19 pandemic.[
55]
The No Sail Order has proven to be a more efficient public health measure for cruise ships than quarantine or isolation. It has mitigated COVID-19 transmission onboard cruise ships, prevented cruise ships from introducing COVID-19 into the United States, preserved local health care resources, and enabled HHS/CDC to deploy its finite resources towards other aspects of the response to the COVID-19 pandemic. In contrast, the issuance of additional Federal quarantine and isolation orders of cruise ship passengers and crew would not have stopped COVID-19 transmission onboard cruise ships and would not have been scalable to the number of cruise ship passengers and crew that would have otherwise disembarked in U.S. ports.[
56]
HHS/CDC's experience underscores why this final rule is vital to public health. In March 2020, a regulation for exercising the authority under section 361 of the PHS Act was readily available to the Director. As a result, HHS/CDC was able to rapidly exercise its section 361 authority and issue the No Sail Order after concluding that quarantine and isolation were inadequate to address the public health risks presented by COVID-19 on cruise ships. Once CDC decided to act, it could do so promptly and was able to more efficiently manage the problem and preserve finite resources. HHS/CDC likewise needs a final rule for exercising its section 362 authority so that it can move with equal dispatch to protect U.S. public health from the introduction of quarantinable communicable diseases into the country in the future. HHS/CDC cannot predict when it will need to exercise the authority in the future, but HHS/CDC needs to be prepared nonetheless. The experience with cruise ships shows that the immediate availability of a procedure is important once a policy decision is made that an action needs to be taken.
END QUOTE
SW
