How a typical employer in agriculture, food processing and agribusiness operates
An employer in this industry produces, packs or processes food with a large, seasonal and often foreign-born workforce that lives in employer-provided housing, rides to work in employer-provided vehicles, and is admitted to the country through consulates and land ports; it sells about half of its output through restaurants, schools and institutions and much of the rest through export; it runs on inputs (seed, feed, parts, packaging, chemicals) made in plants that other States and other countries closed; and it operates within a regulatory system (inspection, licensing, permitting, visa certification) staffed by public employees whose offices closed. Each of those dependencies is a channel through which an order limiting commerce, travel or group meetings reaches the operation, and each was in fact reached. This section describes the functions under the ten codes used throughout this analysis, the revenue lines, the counterparties, the workforce, the seasonality and the geography, and maps each counterparty class to the orders that reached it. The statute those orders are measured against is read element by element at The Statute.
The three employer types
This analysis treats three kinds of employer as one industry because they share a supply chain, a workforce and a regulatory environment. The first is the farm or ranch (NAICS 111, crop production; NAICS 112, animal production), from the dairy and the feedlot to the orchard, the vegetable field, the greenhouse and the nursery. The second is the farm labor contractor and the other support activities for crop and animal production (NAICS 1151 and 1152), which recruit, house, transport and supervise crews for growers. The third is the food manufacturer (NAICS 311), including animal slaughtering and processing (NAICS 3116), seafood product preparation and packaging (NAICS 3117), fruit and vegetable preserving, dairy products, grain and oilseed milling and sugar. Food and beverage manufacturing employed about 1.7 million people in 2021; the Bureau of Labor Statistics counts about 1.76 million employees in roughly 43,000 establishments in NAICS 311.1 Hired farmworkers number between 1.1 and 1.2 million.2 The Centers for Disease Control and Prevention's May 2020 count of 115 meat and poultry plants with outbreaks in nineteen States, and its July 2020 count of 239 plants in twenty-three States, describe the processing tier; the Department of Homeland Security's finding of "disruptions and uncertainty to the U.S. food agriculture sector during the upcoming summer agricultural season" describes the production tier.3
FP: farm production and harvest
Crop production is field work performed by crews in close proximity: planting, thinning, pruning, picking, packing in the field, loading. Animal production is barn, dairy and feedlot work on fixed schedules that cannot be deferred: cows are milked twice or three times a day, hogs and broilers reach market weight on a schedule set by biology, and an animal that cannot be delivered to a plant must be fed, housed or destroyed. The workers live, in large part, in employer-provided housing (labor camps, bunkhouses, motels leased for the season) and travel to the field in employer-provided buses and vans. An order that limited the occupancy of a bunkhouse, required six feet between workers in the row, required a written distancing plan and a distancing officer in the field, required testing before in-person work, or imposed airborne-transmission controls on the crew bus, face coverings among them, limited the operation of this function directly. Washington's Proclamation 20-57 prohibited any agricultural employer from operating after June 3, 2020 except in compliance with the State's Agriculture COVID-19 Requirements; its Departments of Health and Labor and Industries barred top bunks and required distancing in every sleeping, cooking and bathing facility of every temporary worker housing site from May 18, 2020; Oregon OSHA required a "social distancing officer" and six feet between workers "as they perform their duties, during breaks, or during meal periods" from May 11, 2020, and regulated labor housing again from April 30, 2021; California's emergency standard regulated the labor camp and the crew bus from November 30, 2020; Michigan required testing of every migrant camp resident and every new arrival from August 2020 to July 1, 2021; North Carolina placed every farm and farm labor contractor in NAICS 111, 112, 1151 and 1152 under Executive Order 147's exposure-control rule, which required face coverings of every worker within six feet of another, from June 26, 2020 to May 14, 2021.4 The sector regulators and the six quarters below state these instruments quarter by quarter.
PK: packing houses and processing plants
Slaughter, cutting, deboning, canning, freezing and packing are line operations. In a meat or poultry plant workers stand shoulder to shoulder along a moving chain on ten- to twelve-hour shifts; the line speed, the spacing, the shift pattern, the break room and the locker room are the operation. An order that closed the plant, that required six feet between workers on the line, that required the line to slow or the shifts to stagger, that imposed workplace infection-prevention and exposure-control requirements (surgical masks and face shields, screening at the door, exclusion of the exposed), or that required a deep-cleaning shutdown reduced the plant's throughput and hours directly. In April 2020 the plants closed: the Smithfield plant at Sioux Falls halted production between April 11 and April 14, 2020 and was, in the words of the CDC's investigators, to be "shut down indefinitely"; the JBS plant at Greeley closed under a State health department's direction; and the President found that "recent actions in some States have led to the complete closure of some large processing facilities" and that the "closure of a single large beef processing facility can result in the loss of over 10 million individual servings of beef in a single day."5 Thereafter the plants operated as conditioned: under Executive Order 13917's direction that they "continue operations consistent with the guidance for their operations jointly issued by the CDC and OSHA"; under Kentucky's requirement of "six-foot distancing for their entire shift"; under North Carolina's Executive Order 147, whose exposure-control rule for meat and poultry plants required surgical masks of every worker; under Virginia's emergency temporary standard, which named "Poultry, meat, and seafood processing; agricultural and hand labor" among its exposure classifications; under Michigan's testing order; under Cal/OSHA's, Oregon OSHA's and MIOSHA's standards; and, from July 7, 2021, under OSHA's revised National Emphasis Program, which listed animal (except poultry) slaughtering, meat processed from carcasses and poultry processing (NAICS 311611, 311612 and 311615) as targeted industries.6 The Federal Reserve recorded the result in May 2020: "reduced production capacity at meat-processing plants due to closures and social distancing measures."7 Seafood processing ran under Alaska's Health Mandate 017, which required every independent commercial fishing vessel to "enact the protective measures ... described in Appendix 01" and to produce an Acknowledgement Form "upon request by any seafood purchasing agent."8
LB: labor
The seasonal workforce is recruited each year, a large share of it abroad. An H-2A worker is admitted only after the Department of Labor certifies the employer's need, the Citizenship and Immigration Services approves a petition, a consulate issues a visa after an interview, and a port of entry admits the worker. Every link in that chain was closed or conditioned: USCIS closed its offices to the public from March 18 to June 4, 2020; the Department of State suspended routine visa services at every post effective March 20, 2020 and then permitted H-2 processing "as much as possible, as permitted by post resources and local government restrictions," by interview waiver; Proclamation 10014 suspended immigrant entry from April 23, 2020 and Proclamation 10052 suspended H-2B entry from June 24, 2020, both to 2021; the Department of Homeland Security rewrote the H-2A rules three times because of the disruption; and the geographic entry proclamations barred entry from China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa and India through November 8, 2021.9 Domestic seasonal workers who travel from Florida and Texas north with the harvest were subject to State traveler quarantines and, from February 1, 2021, to the federal conveyance order, an airborne-transmission control on every conveyance and transportation hub. Testing, isolation and quarantine rules removed workers from the crew for ten to fourteen days at a time. This function is the industry's most exposed to orders, because the workforce arrives through governmental offices that closed.
MK: markets
Before March 2020 about half of consumer food spending moved through food away from home: restaurants, bars, hotels, schools, colleges, hospitals, stadiums and institutional kitchens.10 Growers, packers and processors sell into those channels through distributors under contracts, specifications and pack sizes that differ from the retail channel; a dairy that ships eight-ounce cartons to schools cannot sell the same milk to a supermarket without a different line, and a processor that cuts steaks for restaurants cannot switch to retail trays in a week. Every State but South Dakota closed restaurants and bars to on-premises service by order between March 15 and April 3, 2020, the great majority by March 24; in South Dakota the closures were municipal (Brookings, Sioux Falls and Rapid City, March 23-27, 2020); and every State closed its schools to in-person instruction by March 23, 2020; the Department of Agriculture found that "many farmers markets, restaurants, and schools have temporarily or permanently closed, thus causing significantly decreased demand" and that the measures, "some of which are government-mandated ... include the closures of restaurants, bars, and gyms."11 Farmers markets were closed or confined by order in several jurisdictions. The reopening ran through capacity steps of 25, 50 and 75 percent from May 2020 into the spring and summer of 2021, with a second closure in the winter of 2020-21 in California, Illinois, Michigan, Minnesota, New Mexico, Oregon, Washington, Pennsylvania and elsewhere. Export markets ran through borders and ports under federal orders (TR). The counterparties subsection below states the restaurant, school and gathering orders by region; the fifty-State table on this page states them State by State.
TR: transport and exports
The industry moves its product by truck, rail and ship, across two land borders and through the seaports. The Department of Homeland Security limited both land borders to essential travel from March 21, 2020 by monthly notification through November 8, 2021; the Title 42 order governed the land ports; the Coast Guard's bulletins and the CDC's conveyance order governed vessels, terminals and every truck driver's rest and transfer point; the Federal Maritime Commission opened its investigation of the ocean supply chain on March 31, 2020 and found blank sailings of 21 percent of voyages in May 2020; and the Treasury's own temporary rule of April 20, 2020 postponed duties for importers whose operation "is fully or partially suspended during March or April 2020 due to orders from a competent governmental authority limiting commerce, travel, or group meetings because of COVID-19," reciting that "[e]mployees are having difficulty getting to work."12 Driver licensing offices closed; State traveler quarantines reached drivers; the Federal Motor Carrier Safety Administration's emergency declaration governed hours of service for the emergency haul. The ecosystem subsection below states this layer.
IN: inputs
Seed, feed, fertilizer, crop-protection chemicals, packaging (cans, trays, film, cartons), replacement parts for tractors, combines, milking systems and processing lines, and the equipment itself come from plants in Michigan, Pennsylvania, Ohio, Indiana, Wisconsin, Ontario and Mexico that were closed or confined to essential operations from March 19 to 24, 2020 until May and June 2020, and from plants in Asia whose governments locked down in 2020 and again in 2021.13 The White House found in June 2021 that the pandemic "created a global semiconductor chip shortage impacting automotive, industrial, and" other sectors, and the Federal Reserve recorded in July and September 2021 "shortages of materials and labor, delivery delays, and low inventories of many consumer goods" and that "many businesses reported having trouble sourcing key inputs."14 The Department of Health and Human Services designated gloves, N95 respirators and gowns scarce materials from March 25, 2020 to November 15, 2021 and FEMA placed their export under federal allocation from April 7, 2020 to June 30, 2021, in the same months in which State orders required this industry to buy them.15 Q&A-12 of the Notice states the Service's own recognition that an order on a supplier suspends the customer.
HR: hiring, licensing, inspection and permitting
Federal inspectors of the Food Safety and Inspection Service are present on every slaughter line; the line does not run without them. State agriculture departments license dairies, nurseries, pesticide applicators and food establishments; Departments of Labor certify H-2A need; USCIS approves petitions; consulates issue visas; county agencies permit farmers markets and fairs. Each of those offices closed to the public or moved to appointment-only operation in 2020 (USDA Service Centers went to phone appointments from March 23, 2020; USCIS closed March 18 to June 4, 2020; the consulates closed March 20, 2020), and the federal workforce itself came under the Safer Federal Workforce protocols, whose revision of July 29, 2021 reinstated face coverings among the workplace exposure controls binding every federal employee and onsite contractor, and Executive Order 14043 of September 9, 2021.16 The federal layer below states these instruments.
OP: offices and administration
The industry's offices (sales, procurement, payroll, compliance, logistics) were subject to the telework mandates of the States where they sat: New Jersey's Executive Order 107 required every employer to accommodate telework "wherever practicable"; Pennsylvania's order provided that "[u]nless impossible, all businesses must conduct their operations remotely"; Minnesota's Executive Order 20-20 and its successors required a written preparedness plan; Los Angeles County ordered non-essential office-based businesses to "cease in-person operations until further notice" through April 4, 2021.17 Office work in this industry supports a plant and a field that cannot be moved home; the office that could telework did not make the plant comparable.
WF: workforce availability
Every worker in this industry is also a parent, a commuter and a person subject to isolation and quarantine orders. Every State closed its schools to in-person instruction in March 2020 and most kept them closed through the 2019-20 year; the 2020-21 year opened remote or hybrid by order in most States; child care was closed to all but essential workers' children in the spring of 2020; the Families First Coronavirus Response Act required every employer under 500 employees to pay leave to workers under quarantine orders and to parents of children whose schools or places of care were closed, from April 1 to December 31, 2020; the State occupational safety standards converted the CDC's quarantine guidance into a legal duty to exclude exposed workers; the federal conveyance order governed every commute by bus from February 1, 2021; and the 2021-22 school year opened under face-covering and quarantine orders, airborne-transmission and exposure controls on every school, in eighteen States and the District.18 The counterparties subsection and the ecosystem section below state this layer.
CB: the customer base
The industry's ultimate customers are households, restaurants, institutions and foreign buyers. Forty-two States and the District ordered their residents to stay at home in the spring of 2020; the entry proclamations and the land-border notifications barred foreign buyers, inspectors and tourists through November 8, 2021; Canada, Mexico, the European Union, China and Japan closed or conditioned their borders to United States travelers and, in some cases, their ports to United States goods.19 An order on the customer base is an order limiting commerce, and the commerce it limited was this industry's.
The revenue lines
A farm's revenue is the sale of its crop or livestock, by contract or at auction, to a packer, a processor, a cooperative, a distributor, a retailer or an exporter; a farm labor contractor's revenue is the fee per crew or per unit harvested; a processor's revenue is the sale of packed product into retail, food service, institutional and export channels. Government payments are a further line, and the Department of Agriculture's Coronavirus Food Assistance Program rules of May 21 and September 22, 2020, January 19, 2021 and August 27, 2021 are the United States' own findings that the industry's markets were disrupted by governmental closures in every one of the six quarters.20
The industry's counterparties are its customers (restaurants, schools, institutions, retailers, exporters and foreign buyers); its workforce and the offices that admit it (consulates, USCIS, the Department of Labor, ports of entry); its landlords and housing (labor camps, motels, bunkhouses); its carriers (truckers, railroads, ocean carriers, ports); its suppliers (seed, feed, chemical, packaging, parts and equipment plants in other States and countries); its regulators and inspectors (FSIS, State agriculture and health departments, occupational safety agencies); its lenders and insurers; and the courts and public offices that record its deeds, hear its disputes and issue its permits. Every class was reached by an order, and the table below maps each class to the category of order and the subsection of the layers analysis that states it.
| Counterparty class | Orders that reached it (category) | Where stated below |
|---|
| Restaurants, bars, hotels, institutional kitchens | Closure, capacity, hours and gathering orders of every State and large city, Mar. 2020 to mid-2021; vaccination-proof orders Aug.-Sept. 2021 | The fifty States; The largest metros |
| Schools and child care | Closure orders Mar. 2020; remote and hybrid orders 2020-21; face-covering and quarantine orders 2021-22 | The counterparties; The ecosystem |
| Consulates, USCIS, DOL, ports of entry | Suspension of routine visa services; office closures; entry proclamations; H-2A and H-2B rules; Title 42; land-border notifications | The federal layer; The ecosystem |
| Labor housing and crew transport | State housing and transport rules (WA, OR, CA, MI); federal conveyance order and TSA directives | The sector regulators; The federal layer |
| Carriers, ports and borders | DHS land-border notifications; Coast Guard bulletins; CDC conveyance order; FMC investigation; port rules | The federal layer; The ecosystem |
| Supplier plants (parts, packaging, chemicals, equipment) | State manufacturing closures Mar.-June 2020; foreign lockdowns; scarce-materials designation and export allocation | The ecosystem |
| Regulators and inspectors (FSIS, State departments, OSHA) | EO 13917; OSHA NEP; State workplace standards; federal workforce protocols and EO 14043 | The federal layer; The sector regulators |
| Courts, recorders and permitting offices | Judicial emergency orders; office closures; remote proceedings | The counterparties |
The workforce
Hired farmworkers are about 1.1 to 1.2 million; H-2A certifications grew "from just over 48,000 positions certified in fiscal year (FY) 2005 to around 385,000 in FY 2024"; labor is 42 percent of production expenses in greenhouse and nursery operations and 40 percent in fruit and tree nut operations.21 Plant workers are concentrated in small cities in Iowa, Nebraska, Kansas, South Dakota, Minnesota, Georgia, Arkansas, North Carolina, Texas, Colorado and California, commute by employer or shared vehicle, and live in dense housing; their children attend the local schools whose closure and quarantine orders reached the plant. The workforce's exposure to orders on housing, transport, schools, borders and consulates is the reason the orders on this industry took the form they did.
Seasonality
Planting runs from March to May; harvest from June to November; slaughter runs year round, so that a two-week plant closure is production never recovered and the animals that would have been slaughtered must be held, diverted or destroyed. The second quarter of 2020 fell on planting and the arrival of the seasonal workforce; the third quarter of 2020 and the third quarter of 2021 fell on the harvest and on the peak of labor-camp occupancy, which is why the Washington and Oregon housing rules were adopted in May and April and readopted to run through September. The winter quarters fell on the citrus, vegetable and greenhouse seasons of California, Arizona, Florida and Texas and on the year-round plants.
Geography
The production tier is concentrated in California, Washington, Oregon, Florida, Texas, Arizona, Michigan, New York, North Carolina and Georgia, several of which (California, Washington, Oregon, Michigan, North Carolina and New York) regulated labor housing, field distancing, farmworker face coverings and other exposure controls, or testing directly; the processing tier is concentrated in the Plains and the Southeast, which are the States in which the April 2020 plant closures occurred and in which the Delta-wave orders of 2021 were local rather than statewide. The industry's markets are national and international, so that a closure order in New York City reached a dairy in Wisconsin and an idle restaurant in Los Angeles reached a lettuce grower in Arizona. Q&A-20 of the Notice recognizes that an employer subject to orders "in some, but not all, jurisdictions" is partially suspended "with respect to all of its operations in all locations."22