The CDC is fighting to keep the CSO in place. It is set to become a non-binding 'consideration,' 'recommendation' or 'guideline' when a preliminary injunction takes effect July 18.
In ruling for Florida's request to lift the order, US District Judge Steven Merryday on June 18 found the CDC did not justify its actions for placing extraordinary restrictions on cruise operations and treating cruising differently than other industries.
CDC in an appeal filed Tuesday called the CSO 'an important tool in ensuring that cruise ship operations do not exacerbate the spread of dangerous variants during this inflection point in the pandemic,' adding: 'It does not shut down the cruise industry but instead provides a sensible, flexible framework for reopening, based on the best available scientific evidence.'
'Cruise ships uniquely situated to spread COVID-19'
CDC said 'cruise ships are uniquely situated to spread COVID-19, due in part to their close quarters for passengers and crew for prolonged periods, and stops at foreign ports that risk introducing new variants of COVID-19 into the United States.'
in its request for preliminary injunction, Florida claimed heavy economic losses due to the cruise shutdown. CDC noted that cruises are restarting, with several ships having obtained conditional sailing certificates and more set to resume sailing each week this summer.
Vaccine passport ban disrupts orderly process
'There is thus no evidence that cruise lines will instead resume sailing in a way that provides Florida additional revenue if the CSO is enjoined,' CDC said. 'On the contrary, the injunction — together with Florida’s refusal to allow cruise lines to verify the vaccination status of their passengers — will disrupt the orderly process for resuming operations that the CDC developed in close consultation with the cruise industry.'
Merryday had indicated he would likely decide in the state's favor in the underlying case. But CDC suggested it has a 'substantial likelihood' of success on appeal.
'Well within CDC's authority' to regulate cruise ship public health
'All of the ships covered by the preliminary injunction are foreign-flagged and stop at a foreign port on every cruise,' CDC said. 'The CSO is based on longstanding regulations that authorize CDC to issue controlled free pratique to ships seeking to disembark passengers at US ports, and the conditions that the CDC established pursuant to that authority — like testing, reporting and social distancing — are conventional communicable disease-control practices, at a scale commensurate with the scope of the pandemic and the elevated risks of transmission on cruise ships.
'It is well within the CDC’s traditional authority to require such measures to prevent the introduction or spread of communicable disease into the United States from foreign-flagged ships seeking to operate in US waters and, indeed, Congress enacted legislation in May 2021 that is premised on the CDC’s authority to issue conditional sailing certificates pursuant to the CSO,' the agency stated in its filing.
Seeking a stay of the judge's order
'The Justice Department, on behalf of the CDC, seems to be focused on obtaining a stay of Judge Merryday’s order. Because of the rapid restart of cruising, the issues will be moot if the CDC is unable to obtain a stay,' said Robert Kritzman, a partner at law firm Lewis Brisbois in Fort Lauderdale.
'A motion for stay was initially filed with Judge Merryday since the federal rules generally require a denial of a motion for stay by the District Court before the Appellate Court will entertain the motion,' Kritzman elaborated. 'Based on the detailed analysis and opinion provided by Judge Merryday, it does not seem likely he will grant the motion. If he does not, the Justice Department will almost certainly move for a stay from the Circuit Court of Appeals.
'If a stay is not obtained quickly,' Kritzman added,' the actual ability of cruise lines to operate their ships devoid of serious health issues may provide the 11th Circuit the information it needs to rule on the case.'