Tracking Cruising Restart: News and Updates

[mcd2745]

Just a question. If DCL were to go the vaccinated route instead of test sailings, I wonder why the mask requirement on the private island since it would be completely outdoors and the CDC’s own recommendations that were just released do not require masks outdoors among fully vaccinated people?

Logic and common sense have largely been absent throughout this whole ordeal. Why expect it to suddenly make an appearance now?

 

[mevelandry]

Just a question. If DCL were to go the vaccinated route instead of test sailings, I wonder why the mask requirement on the private island since it would be completely outdoors and the CDC’s own recommendations that were just released do not require masks outdoors among fully vaccinated people?

My own prediction: I believe they will require it only when six feet distancing is not possible.

 

[brentm77]

The CDC filed its Opposition to Florida’s Motion for Preliminary Injunction last night.

The CDC was granted permission to file a lengthy brief, totaling 45 pages, which made it difficult to provide a succinct summary, but I did my best.

General

• Florida didn’t challenge any of the initial CDC orders and suddenly wants the court to strike the current order. By doing nothing for well over a year, Florida can’t now claim irreparable harm.
• Had Florida brought the claim earlier, a preliminary injunction wouldn’t be on the table, since there would have been plenty of time to adjudicate the issue before summer cruising season.
• We are still in a once-in-a-century pandemic that has killed 500K+ Americans and 3 million people.
• Several deadly outbreaks were clustered on cruise ships, like the Diamond Princess. These outbreaks take vast expenditures of government resources.
• Cruise ships are uniquely suited to spread COVID-19.
• The CDC’s no-sail order was replaced with the Conditional Sailing Order (“CSO”), which provides a pathway to re-open. As of [the day the opposition was field], the CDC issued new guidance for test sailings.
• The CDC is working with the cruise lines – and they haven’t joined Florida’s lawsuit.

Florida lacks standing:

• The CSO regulates cruise lines, not states. The CSO doesn’t require Florida to do anything.
• Lower general tax revenue is a generalized grievance and is speculative. There is no direct injury to Florida. Lower revenue can’t be fairly traced to the CDC order, because it can be affected by independent decisions of third parties and the course of the virus.
• It now appears summer cruise season can occur, further weakening Florida’s damage claim.
• Florida doesn’t know if there will be a ship-born outbreak that ends up costing the state a lot of money, weakening its potential damage claim.
• Florida can’t represent its citizens interests when challenging a federal regulation in most situations, as that right sits with the federal government.
• Florida lacks statutory standing under federal law.

Florida can’t show it is likely to prevail on the merits.

• The CDC acted within its authority and must be given deference during a pandemic.
• 95% of cruise ships have performed the required mass screening testing of all crew, and 80% have complied with Phase 1 of the CSO.
• The CDC now allows bypassing simulated voyages with 95% of passengers and 98% of cruise vaccinated.
• On May 5, 2021, the CDC released the guidance for simulated voyages. Cruise ship operators now have all the necessary instructions they need to conduct simulated voyages.
• Granting the injunction wouldn’t maintain the status quo, it would upend it, and the purpose of an injunction is to maintain the status quo until the matter can be adjudicated.

There is no irreparable harm to Florida.

• Financial damages are usually not sufficient, and Florida hasn’t made a claim that it can’t operate without the tax revenue.
• Florida can tax more to make up the revenue, even if it can’t recover it from the CDC.
• The injuries are too speculative.

The CDC did not exceed its authority.

• The Secretary has very broad authority to regulate the transmission of disease, and the Secretary has delegated that authority to the CDC.
• Examples given by Congress are illustrative and not exhaustive.
• The CDC is expressly granted authority to regulate vessels, for example, it may detain a carrier that is believes may introduce disease into the country. And when it believes state measures are insufficient to prevent the spread of disease from one state to another, it may take reasonable measures to prevent the spread.
• The CSO requirements may seem extensive, but they are less burdensome than what the CDC can require in other situations – such as the detention or destruction of property.
• The court shout not pay attention to the many cases recently holding the CDC exceeded its authority with its eviction moratorium, because those courts were wrong, those courts weren’t looking at the CDC’s authority to regulate vessels, and some cases held the CDC was infringing on an area normally regulated by the states, which doesn’t apply to cruise ships.

The CSO is not arbitrary and capricious.

• The test is whether the CDC acted with “reasoned decisionmaking,” not whether there are better alternatives.
• Courts should defer to health officials in the areas of medical and scientific uncertainty.
• The CSO findings are based on extensive experience, specific data, and consideration of public and industry input.
• A court can’t now account for vaccines when evaluating the CSO, because it is required to only look at the information available to the agency at the time the rule was made.
• Even if people can fly and cruise internationally, the CDC recommends they don’t, and whatever number of people do it, it will be less than those who would cruise form US ports.
• There is good reason to treat cruise ships differently – enclosed spaces where social distancing is challenging, crew and passengers live onboard for prolonged periods. Data shows transmission is different than a hotel or airplane.

Notice and comment procedures were not required.

• This was an “order” not a “rule.” Rules are used in emergencies, are not a final dispositions, and do not require notice and comment.
• And even if it is considered a rule, the agency can bypass notice and comment for good cause when it is impracticable, unnecessary, or contrary to public interest. This is important when delay would cause harm.
• Even if the CDC should have given notice and received comments, there was no harm to Florida, because the CDC essentially did that anyway by informal means.

My initial impressions:

I believe the CDC purposely released the test-cruising guidance on the same day it filed its opposition. It was a good move that made it very difficult for Florida to now argue that the summer season will pass before the CDC provides a path forward. The standing argument also appears strong, but I will wait to see what Florida’s response to it is.

I think the eviction moratoriums were completely different than the CDC regulating cruise ships. It wasn’t particularly bold for courts to strike them down, whereas a decision here would be much more legally consequential and bold.

I have little doubt that the court will take the easiest path, which is to deny the preliminary injunction and let the case sit while the CDC works with the cruise lines to resume sailings. Once cruising resumes sailing, the case is likely to be resolved, withdrawn, or dismissed as moot.

But, I think we have already seen that the case played a role in pushing the CDC to act more quickly than it has in the previous year. As long as the case is pending, it will continue to put pressure on the CDC. Government agencies want to avoid legal rulings that can limit their power in the future.

Florida has until May 19 to submit its reply brief and then the judge can make a ruling on the motion.

P.S. The Governor's ban on businesses requiring vaccinations was referenced in a footnote, stating, "it is unclear whether the Governor’s order will delay cruise ships from resuming operations in Florida."

 

[mcd2745]

But, I think we have already seen that the case played a role in pushing the CDC to act more quickly than it has in the previous year. As long as the case is pending, it will continue to put pressure on the CDC. Government agencies want to avoid legal rulings that can limit their power in the future.

No question. Plus, I'm sure they want to avoid going to court where they may then be required to disclose all sorts of information they want kept private/confidential.

 

[tidefan]

My own prediction: I believe they will require it only when six feet distancing is not possible.

Didn’t the CDC revise outdoor distancing to 3 feet?

 

[mevelandry]

The CDC filed its Opposition to Florida’s Motion for Preliminary Injunction last night.

The CDC was granted permission to file a lengthy brief, totaling 45 pages, which made it difficult to provide a succinct summary, but I did my best.

General

• Florida didn’t challenge any of the initial CDC orders and suddenly wants the court to strike the current order. By doing nothing for well over a year, Florida can’t now claim irreparable harm.
• Had Florida brought the claim earlier, a preliminary injunction wouldn’t be on the table, since there would have been plenty of time to adjudicate the issue before summer cruising season.
• We are still in a once-in-a-century pandemic that has killed 500K+ Americans and 3 million people.
• Several deadly outbreaks were clustered on cruise ships, like the Diamond Princess. These outbreaks take vast expenditures of government resources.
• Cruise ships are uniquely suited to spread COVID-19.
• The CDC’s no-sail order was replaced with the Conditional Sailing Order (“CSO”), which provides a pathway to re-open. As of [the day the opposition was field], the CDC issued new guidance for test sailings.
• The CDC is working with the cruise lines – and they haven’t joined Florida’s lawsuit.

Florida lacks standing:

• The CSO regulates cruise lines, not states. The CSO doesn’t require Florida to do anything.
• Lower general tax revenue is a generalized grievance and is speculative. There is no direct injury to Florida. Lower revenue can’t be fairly traced to the CDC order, because it can be affected by independent decisions of third parties and the course of the virus.
• It now appears summer cruise season can occur, further weakening Florida’s damage claim.
• Florida doesn’t know if there will be a ship-born outbreak that ends up costing the state a lot of money, weakening its potential damage claim.
• Florida can’t represent its citizens interests when challenging a federal regulation in most situations, as that right sits with the federal government.
• Florida lacks statutory standing under federal law.

Florida can’t show it is likely to prevail on the merits.

• The CDC acted within its authority and must be given deference during a pandemic.
• 95% of cruise ships have performed the required mass screening testing of all crew, and 80% have complied with Phase 1 of the CSO.
• The CDC now allows bypassing simulated voyages with 95% of passengers and 98% of cruise vaccinated.
• On May 5, 2021, the CDC released the guidance for simulated voyages. Cruise ship operators now have all the necessary instructions they need to conduct simulated voyages.
• Granting the injunction wouldn’t maintain the status quo, it would upend it, and the purpose of an injunction is to maintain the status quo until the matter can be adjudicated.

There is no irreparable harm to Florida.

• Financial damages are usually not sufficient, and Florida hasn’t made a claim that it can’t operate without the tax revenue.
• Florida can tax more to make up the revenue, even if it can’t recover it from the CDC.
• The injuries are too speculative.

The CDC did not exceed its authority.

• The Secretary has very broad authority to regulate the transmission of disease, and the Secretary has delegated that authority to the CDC.
• Examples given by Congress are illustrative and not exhaustive.
• The CDC is expressly granted authority to regulate vessels, for example, it may detain a carrier that is believes may introduce disease into the country. And when it believes state measures are insufficient to prevent the spread of disease from one state to another, it may take reasonable measures to prevent the spread.
• The CSO requirements may seem extensive, but they are less burdensome than what the CDC can require in other situations – such as the detention or destruction of property.
• The court shout not pay attention to the many cases recently holding the CDC exceeded its authority with its eviction moratorium, because those courts were wrong, those courts weren’t looking at the CDC’s authority to regulate vessels, and some cases held the CDC was infringing on an area normally regulated by the states, which doesn’t apply to cruise ships.

The CSO is not arbitrary and capricious.

• The test is whether the CDC acted with “reasoned decisionmaking,” not whether there are better alternatives.
• Courts should defer to health officials in the areas of medical and scientific uncertainty.
• The CSO findings are based on extensive experience, specific data, and consideration of public and industry input.
• A court can’t now account for vaccines when evaluating the CSO, because it is required to only look at the information available to the agency at the time the rule was made.
• Even if people can fly and cruise internationally, the CDC recommends they don’t, and whatever number of people do it, it will be less than those who would cruise form US ports.
• There is good reason to treat cruise ships differently – enclosed spaces where social distancing is challenging, crew and passengers live onboard for prolonged periods. Data shows transmission is different than a hotel or airplane.

Notice and comment procedures were not required.

• This was an “order” not a “rule.” Rules are used in emergencies, are not a final dispositions, and do not require notice and comment.
• And even if it is considered a rule, the agency can bypass notice and comment for good cause when it is impracticable, unnecessary, or contrary to public interest. This is important when delay would cause harm.
• Even if the CDC should have given notice and received comments, there was no harm to Florida, because the CDC essentially did that anyway by informal means.

My initial impressions:

I believe the CDC purposely released the test-cruising guidance on the same day it filed its opposition. It was a good move that made it very difficult for Florida to now argue that the summer season will pass before the CDC provides a path forward. The standing argument also appears strong, but I will wait to see what Florida’s response to it is.

I think the eviction moratoriums were completely different than the CDC regulating cruise ships. It wasn’t particularly bold for courts to strike them down, whereas a decision here would be much more legally consequential and bold.

I have little doubt that the court will take the easiest path, which is to deny the preliminary injunction and let the case sit while the CDC works with the cruise lines to resume sailings. Once cruising resumes sailing, the case is likely to be resolved, withdrawn, or dismissed as moot.

But, I think we have already seen that the case played a role in pushing the CDC to act more quickly than it has in the previous year. As long as the case is pending, it will continue to put pressure on the CDC. Government agencies want to avoid legal rulings that can limit their power in the future.

Florida has until May 19 to submit its reply brief and then the judge can make a ruling on the motion.

P.S. The Governor's ban on businesses requiring vaccinations was referenced in a footnote, stating, "it is unclear whether the Governor’s order will delay cruise ships from resuming operations in Florida."

I have a feeling those proceedings will end very soon.

 

[mevelandry]

Didn’t the CDC revise outdoor distancing to 3 feet?

I have no idea...

 

[tidefan]

I have no idea...

Actually, that was for schools. Here is what is on the CDC website as guidance for fully vaccinated people:

• You can gather or conduct activities outdoors without wearing a mask except in certain crowded settings and venues.

 

[Sykes]

Norwegian's CEO says that they'll require vaccines through at least the end of October and that they'll temporarily pull out of Florida if it turns out that state law doesn't allow them to enforce their vaccine mandate. Having said that, they don't believe that Florida has the authority to regulate cruise ships in that way. https://thepointsguy.com/news/norwegian-could-pull-ships-from-florida/

 

[Intr3pid]

Just a question. If DCL were to go the vaccinated route instead of test sailings, I wonder why the mask requirement on the private island since it would be completely outdoors and the CDC’s own recommendations that were just released do not require masks outdoors among fully vaccinated people?

The CDC's general guidance is something like this:

1. If you are outdoors with fully vaccinated people in a small gathering, you don't need a mask.

2. If you are outdoors with unvaccinated people in a small gathering, you still need a mask..
3. If you are outdoors with fully vaccinated people in a large gathering, you still need a mask.

4. If you are outdoors with unvaccinated people in a large gathering, even a mask won't help you.

https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/participate-in-activities.html
So, unless cruise ships (1) require full vaccinations and (2) limit crowds at their islands to small groups, the CDC's technical requirements are pretty much in line with their general guidance.

 

[sullivan.kscott]

Norwegian's CEO says that they'll require vaccines through at least the end of October and that they'll temporarily pull out of Florida if it turns out that state law doesn't allow them to enforce their vaccine mandate. Having said that, they don't believe that Florida has the authority to regulate cruise ships in that way. https://thepointsguy.com/news/norwegian-could-pull-ships-from-florida/

NCL is no small player in FL. I wonder if port authorities will turn around and sue the state if they actually try blocking NCL from enforcing their corporate policy, as they're following one of the CDC's paths to restart.

Also, if both DS were over 12 (13&11) and could be vaccinated in the very near future, I'd book an NCL sailing just to show my support for them sticking to their guns. They're pretty cost friendly, anyway, so the other restrictions wouldn't be as annoying as they would be at DCL's prices. No way I'd get on a 100% vaccinated Fantasy 7-nighter if it wasn't 100% normal offerings.

 

[Intr3pid]

But, I think we have already seen that the case played a role in pushing the CDC to act more quickly than it has in the previous year. As long as the case is pending, it will continue to put pressure on the CDC. Government agencies want to avoid legal rulings that can limit their power in the future.

I agree that the lawsuit forced the CDC's hand to deliver something by May 5. The question remains whether this is early enough. NCL's Del Rio, for example, bemoaned the timing in today's earnings call, suggesting that a summer restart might still be 'in jeopardy'.

Did the lawsuit divert the CDC's stretched resources away from working with the cruise lines? Could a less combative or lazy approach and an earlier engagement have helped the CDC draft these sooner? I don't know. The good news is, the script is now known, and we just have to run with it.

 

[tidefan]

The CDC's general guidance is something like this:

1. If you are outdoors with fully vaccinated people in a small gathering, you don't need a mask.

2. If you are outdoors with unvaccinated people in a small gathering, you still need a mask..
3. If you are outdoors with fully vaccinated people in a large gathering, you still need a mask.

4. If you are outdoors with unvaccinated people in a large gathering, even a mask won't help you.

https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/participate-in-activities.html
So, unless cruise ships (1) require full vaccinations and (2) limit crowds at their islands to small groups, the CDC's technical requirements are pretty much in line with their general guidance.

I’ll agree the vaccination requirement is a big “if” here, but if all passengers are vaccinated, the actual CDC guidelines from the CDC website are as stated above:

• You can gather or conduct activities outdoors without wearing a mask except in certain crowded settings and venues

I think where you have room for disagreement is what “crowded settings and venues” entails. For Disney resorts, for instance, they mitigate this by setting pods of chairs at the pool at least 6 feet apart. Could they do this at Castaway? Sure they could, especially if they aren’t sailing at 100% capacity when they first start back.

The other variable, I think, that DCL has in its favor with CC is the fact that they dock there. That would make it much easier to socially distance entry and exit. I imagine that part will be more of a logistical challenge for the private island that require tendering...

 

[fredandkell]

From the article:

The requirements included mask-wearing mandates that go far beyond what has become the norm at land-based resorts in the U.S., including a requirement that sunbathers wear masks even when lounging outdoors in bathing suits by pools. This is despite the fact that the CDC also will require each lounge chair on outdoor decks to be separated by 6 feet for social distancing.

As Del Rio noted, the operations manual also called for mask wearing even while eating a meal, with passengers only allowed to dip their masks momentarily for bites.

In the words of Randy from American Idol, "That's a no from me, dawg."

https://thepointsguy.com/news/norwegian-cruise-ceo-blasts-cdc-rules/

 

[Intr3pid]

I’ll agree the vaccination requirement is a big “if” here, but if all passengers are vaccinated, the actual CDC guidelines from the CDC website are as stated above:

• You can gather or conduct activities outdoors without wearing a mask except in certain crowded settings and venues

I think where you have room for disagreement is what “crowded settings and venues” entails. For Disney resorts, for instance, they mitigate this by setting pods of chairs at the pool at least 6 feet apart. Could they do this at Castaway? Sure they could, especially if they aren’t sailing at 100% capacity when they first start back.

The other variable, I think, that DCL has in its favor with CC is the fact that they dock there. That would make it much easier to socially distance entry and exit. I imagine that part will be more of a logistical challenge for the private island that require tendering...

The CDC does define a cruise ship as a congregating setting, so the default lens is that for a crowd. I agree It's very much possible to spread people out at the islands and do the pods as you suggest. The CDC would still have to come up with rules specific to such private islands - much like it has done for the shore excursions. It's all not very different from the cruise line being asked to enforce masks and social distancing on the entire ship even though we can argue that the top deck is 'outdoors'.

If, by November, the order is significantly modified anyways, this requirement may just be a part of what they are calling a phased restart. Walk before run, you know.

 

[FightingIrishman]

Ridiculous

 

[RedHead0186]

That does seem really ridiculous. I don't get why the guidelines are so much stricter than land-based resorts. I don't want to have to keep fiddling with my mask every time I want to take a bite or sip.

 

[Princess Merida]

I would think once you get through exiting the ship on Castaway and find somewhere on the beach with your own party socially distanced it would be within the normal CDC guidelines to remove your mask. If not, especially by then, it's simply ridiculous. This is just really getting out of hand. Governor of VA announced today that we expect social distancing and any caps on capacity to be gone by June 15 in our state. Masks shouldn't be too far behind that (I hope). Do the CDC guidelines for cruising really state that you have to wear a mask at the pool if you're in a lounger and while eating pull mask down instead of no mask? I have read so much on the boards today I don't know where I saw that.

 

[Intr3pid]

None of the 'masks' requirements he is highlighting are the reasons for the delay. The real reasons are the requirements to secure shoreside medical and housing capacity and agreements with the ports. He was hoping for the CDC to let go of them because he hasn't done anything about them - but that hasn't happened.

Investors punished the stock rightly today.

 

[kathi]

So if the test cruises have to go on for 60 days and can only be 18 and above - it seems to make a lot more sense to go with the 98/95% or 100% (even better) vaccination scenario and start sailing with paying passengers as soon as they are authorized to do so. You can get kids 12 and up on the ship along with their families and adults cruising without kids. Unless I'm missing something, it seems like a no brainer.

EDIT - I didn't realize that the test cruise requirements recently changed to only one voyage - that certainly is a big change.

I'm dubious we will sail on our September cruise (concierge). I'm not shelling out that kind of money for a significantly reduced experience, which will be even more restricted with non-vaccinated passengers (as would be necessary for their safety).