The six quarters
In each of the six calendar quarters from April 1, 2020 through September 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19 were in force on the first day and on the last day of the quarter, reached every function of this industry, and caused a temporary delay, interruption or termination of a more than nominal portion of its operations. This section states, for each quarter, the orders in force by layer with their first-day and last-day status, how they reached the functions, and the finding in the terms of Tri-State Memorial Hospital v. United States, No. 2:25-cv-0181-TOR, ECF No. 38 (E.D. Wash. May 28, 2026) (Tri-State). The third quarter of 2021 is written as a self-contained pointed section, because it is the quarter about which the Service's letters make their most sweeping factual assertion and about which the public record is most unforgiving of it.
The second quarter of 2020
On April 1, 2020 forty-two States and the District had ordered or were within days of ordering their residents to stay at home and every business not on an essential list to close: California from March 19, Pennsylvania from March 19, Illinois from March 21, New Jersey from March 21, New York from March 22, Louisiana, Oregon, Washington, Ohio and Connecticut from March 23, Michigan, Indiana, Massachusetts, New Mexico, West Virginia and Delaware from March 24, Wisconsin, Vermont, Hawaii and Idaho from March 25, Colorado and Kentucky from March 26, Minnesota and New Hampshire from March 27, Alaska, Montana and Rhode Island from March 28, Kansas, Maryland, North Carolina and Virginia from March 30, Arizona and Tennessee from March 31, Nevada and the District from April 1, Texas and Maine from April 2, Florida, Georgia and Mississippi from April 3, Alabama from April 4, Missouri from April 6, and South Carolina from April 7; Oklahoma ordered vulnerable persons home from March 24 and closed every non-critical business statewide from April 1, Utah's Stay Safe, Stay Home directive of March 27 governed every resident and business, and South Dakota ordered every employer and enclosed retail business to mandatory measures and vulnerable residents of Minnehaha and Lincoln Counties to stay home from April 6.142 Every State but South Dakota had closed restaurants and bars to on-premises service by order between March 15 and April 3, 2020, the great majority by March 24; South Dakota's closures were municipal (Brookings, Sioux Falls and Rapid City, March 23-27, 2020); and every State had closed its schools to in-person instruction by March 23, 2020.143 Every stay-at-home order defined the essential workforce by reference to the CISA guidance or to a State list built on it (Pennsylvania's life-sustaining list; New York's Empire State Development guidance), each of which listed food and agriculture, and every one conditioned the continued operation of the listed employers on the workplace infection-prevention and exposure-control requirements of distancing, hygiene and, from April, face coverings.144 The federal layer of April 1 is stated above: the entry proclamations, the land-border notifications, the Title 42 order, the consular suspension, the USCIS closure, the Defense Production Act orders, the scarce-materials designation and the FFCRA leave mandates.145 During the quarter the President added Proclamation 10014 (April 23), Executive Order 13917 (April 28), the Brazil proclamation (May 26) and Proclamation 10052 (June 24); the Department of Homeland Security added the H-2A rule (April 20) and the H-2B rule (May 14); FEMA placed PPE exports under allocation (April 7); the Department of Agriculture adopted the CFAP rule (May 21); and the CDC and OSHA issued the meat and poultry guidance (April 26) that Executive Order 13917 directed the Secretary to enforce.146 The sector layer arrived in the same weeks: Alaska's Health Mandate 017 (April 24); the Weld County and State health authorities' April 2020 demand, described by category, under which JBS Greeley closed April 13 to 24 (closure dates recorded in OSHA's citation release, Ex. SEC-20-022), and the Governor's and Mayor's April 11, 2020 request for a fourteen-day closure of Smithfield Sioux Falls, recited in the CDC memorandum (Ex. SEC-20-020), after which the plant halted production April 11 to 14 and closed indefinitely; Oregon OSHA's AO 2-2020 (adopted April 28; effective May 11; enforced from June 1); Washington's housing rules (May 18) and Proclamation 20-57 (May 28; operative June 3); Kentucky's Healthy at Work requirements (May 9 and 11); Michigan's Executive Order 2020-114 (June 5); Dallas County's Rules for Manufacturers and Distributors (April 2) and Supplemental Order on Food Processing Plants (May 15); New Jersey's Executive Order 122 (April 10); Pennsylvania's worker-safety order (April 15); California's Executive Order N-51-20 (April 16); and North Carolina's Executive Order 147 (June 26).147 On June 30, 2020 California's Executive Order N-33-20 remained in force; New York City had entered Phase 2 only on June 22 with indoor dining closed; Washington's counties sat in Safe Start phases with Proclamation 20-57 and the housing rules in force; Oregon's AO 2-2020 was enforced; Michigan's manufacturing had reopened only on May 11 under Executive Order 2020-77 and Executive Order 2020-114 governed it; New Jersey's Executive Orders 107 and 122 governed every plant; Illinois had entered Phase 4 on June 26 at capacity limits; Texas had closed its bars again on June 26 under GA-28; every federal instrument listed for April 1 remained in force, joined by Proclamations 10014 and 10052, Executive Order 13917 and the FEMA rule.148 The largest metros ran ahead of their States: the Bay Area's shelter orders from March 17, Los Angeles County's from March 19-21, New York City's Emergency Executive Orders 100 and 103 from March 16 and 25, Harris and Dallas Counties' from March 24, Chicago's and Oak Park's from March 20, Denver's from March 24, Philadelphia's Order No. 2 from March 23, Atlanta's and Fulton County's from March 24 and 31, and Seattle's and King County's from March 16.149
FP: Washington's growers operated after June 3 only under the Agriculture COVID-19 Requirements and, from May 18, housed their crews without top bunks and with distancing in every sleeping, cooking and bathing facility; Oregon's growers operated their fields, buses and camps under AO 2-2020 from May 11; every grower's crew was subject to its State's stay-at-home order's travel and gathering clauses. PK: the plants closed in April (Sioux Falls from April 12; Greeley April 13-24; others by category), then operated under Executive Order 13917 and the CDC-OSHA guidance it enforced, under Dallas County's binding line-speed and shift rules, Kentucky's whole-shift distancing, New Jersey's and Pennsylvania's mitigation orders, Michigan's Executive Order 2020-114 and North Carolina's surgical-mask rule for plant workers; the Federal Reserve recorded "reduced production capacity at meat-processing plants due to closures and social distancing measures."150 LB: every routine consular appointment was cancelled from March 20; USCIS was closed to the public from March 18 to June 4; the H-2A rule was rewritten because of the disruption; immigrant entry was suspended from April 23 and H-2B entry from June 24 subject to a consular determination of food-supply-chain necessity. MK: the restaurant, bar, school, stadium and institutional channels closed in every State within three weeks of March 15 and reopened at 25 and 50 percent from May; the Department of Agriculture found the demand collapse and attributed it to closures "some of which are government-mandated." TR: both land borders were limited to essential travel from March 21; blank sailings took 21 percent of voyages in May; the Treasury found that importers' operations were being suspended by "orders from a competent governmental authority limiting commerce, travel, or group meetings." IN: the parts, packaging, chemical and equipment plants of Michigan, Pennsylvania, New York, New Jersey, Ohio, Indiana, Wisconsin, Ontario and Mexico were closed from March 19-24 until May and June. HR and OP: USDA Service Centers went to phone appointments from March 23; offices operated under telework mandates. WF: every school and most child care closed; the FFCRA leave mandate ran from April 1; forty-two stay-at-home orders confined the workforce. CB: the same orders confined the customer base; the entry proclamations and land-border rules barred foreign buyers.
During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the stay-at-home and business-closure orders of forty-two States and the District and of every large city (Ex. CA-002; Ex. WA-016; Ex. IL-005; Ex. NY-003; Ex. MI-011; Ex. PA-002; Ex. TX-008; Ex. MET-SFO-001; Ex. MET-LA-003; Ex. MET-NYC-006; Ex. MET-HOU-005; Ex. MET-DFW-005), the restaurant, bar and school closure orders of every State (Ex. TX-003; Ex. MET-NYC-003; Ex. ECO-B-105), the Department of State's suspension of routine visa services and the closure of USCIS offices (Ex. SEC-20-012; Ex. SEC-20-013; Ex. FED-324), the Department of Homeland Security's H-2A and H-2B rules (Ex. SEC-20-005; Ex. SEC-20-008), Proclamations 10014 and 10052 (Ex. SEC-20-009; Ex. SEC-20-010), the State and local plant-closure directions and the President's Defense Production Act order (Ex. SEC-20-020; Ex. SEC-20-001), the farm-housing, field-distancing and plant-operating rules of Washington, Oregon, Kentucky, Michigan, New Jersey, Pennsylvania, Dallas County and North Carolina (Ex. SEC-20-031; Ex. SEC-20-032; Ex. SEC-20-033; Ex. SEC-20-036; Ex. SEC-10-051; Ex. SEC-20-045; Ex. SEC-10-020; Ex. PA-008; Ex. MET-DFW-011; Ex. MET-DFW-018; Ex. SEC-20-044), the land-border notifications and entry proclamations (Ex. ECO-A-020; Ex. ECO-A-040; Ex. FED-200; Ex. FED-201), and the FFCRA leave mandates (Ex. FED-170), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by closing the plants, by conditioning every plant and farm that continued on workplace infection-prevention and exposure-control rules (distancing, spacing, screening, housing and face coverings) that reduced throughput and capacity, by closing the consulates and offices through which the seasonal workforce is admitted and suspending its entry, by closing the restaurant, school and institutional channels that took about half of the industry's output, by confining the customer base and the workforce to their homes, and by closing the plants and borders through which the industry's inputs arrive.
The third quarter of 2020
On July 1, 2020 every State had replaced its stay-at-home order with a phased reopening order fixing capacity percentages and operating rules, or, in California, Washington, Oregon, New Mexico, New York, New Jersey, Massachusetts and Michigan, kept the stay-at-home order or its successor in force with the phases layered on it.151 Texas had closed its bars on June 26 and required face coverings statewide from July 3 as an airborne-transmission control on every business and public space (GA-28; GA-29); California closed indoor dining, bars, indoor gyms, indoor worship, indoor personal care, malls and non-critical offices statewide on July 13; Arizona closed bars, gyms and theaters from June 29, reopening them only by attestation from August 10 (Ex. AZ-022; Ex. AZ-029); Michigan's Executive Order 2020-145 of July 9 restated its workplace safeguards; Minnesota required face coverings in indoor businesses and public spaces from July 25 and Colorado from July 17, each an airborne-transmission control layered on the State's capacity and preparedness-plan rules; North Carolina's Executive Order 147 governed every farm and plant from June 26; Virginia's emergency temporary standard took effect July 27 for "every employer, employee, and place of employment in the Commonwealth"; Michigan's MDHHS testing order issued August 3 with compliance by August 24; Washington readopted its housing rules on September 10; Oregon's AO 2-2020 ran to October 24.152 Most States opened the 2020-21 school year remote or hybrid by instruments with the force of law or delayed in-person instruction, and the States that ordered in-person opening (Florida, Iowa, Texas) did so under face-covering, distancing and quarantine conditions that removed exposed students and staff for fourteen days at a time; the Harris County and Dallas County health authorities barred on-campus instruction until September 8 and August 10, 2020 respectively, and Los Angeles County ordered every school closed to in-person learning on July 18.153 The federal layer ran the whole quarter: the entry proclamations; the immigrant and nonimmigrant suspensions of Proclamations 10014 and 10052; the land-border notifications of June 24, July 22, August 21 and September 23; the Title 42 order; the FEMA export-allocation rule as extended August 10; the scarce-materials designation as extended July 30; the FFCRA mandates; Executive Order 13917; and the Department of State's phased, post-by-post resumption from July 15, under which routine services returned to each consulate only as local conditions permitted.154 The Department of Homeland Security re-issued the H-2A rule on August 20, and the Department of Agriculture adopted CFAP 2 on September 22 on the finding of "continuing market disruptions."155 OSHA cited JBS Greeley on September 11 and Smithfield Sioux Falls on September 10.156 Chicago required every business to screen every employee at the start of every shift and imposed a fourteen-day quarantine on arrivals from high-incidence States from July 6; New York City ran Sheriff's checkpoints at the city line from August 5 and required every hotel to refuse rooms to unregistered travelers from August 21; Harris and Dallas Counties required every commercial entity to adopt and post a health and safety policy with face coverings; Los Angeles County held the Purple tier from August 28.157 On September 30, 2020 every one of those instruments, or the successor that carried its terms (the Blueprint for California's July 13 order; GA-30 for GA-28), was in force, except the Dallas and Harris County school orders, which had run their terms on August 10 and September 8.
FP: Washington's growers harvested under Proclamation 20-57 and the housing rules, readopted September 10 for the rest of the season; Oregon's under AO 2-2020; North Carolina's under Executive Order 147's face-covering rule; Michigan's under Executive Order 2020-145 and the testing order, which required every migrant camp resident to be tested and every new arrival to be tested within forty-eight hours and housed separately for fourteen days; Virginia's under the emergency temporary standard, which named agricultural and hand labor. PK: every plant operated under Executive Order 13917's enforced guidance, under its State's manufacturing standard (Kentucky, New Jersey, Pennsylvania, Minnesota, Michigan, Virginia, North Carolina's surgical masks, Dallas County's food-plant order) and under the face-covering orders of thirty-odd States, airborne-transmission controls on every business and indoor public setting; Michigan's meat, poultry and egg processors tested every worker before in-person work from August 24. LB: consulates resumed post by post; Proclamation 10052 suspended H-2B entry subject to the food-supply-chain exception; the land borders remained limited; State traveler quarantines (New York, New Jersey and Connecticut from June 25; Chicago from July 6; Hawaii, Alaska, Maine, Vermont, Rhode Island, Kansas, Kentucky, New Mexico) reached crews moving with the harvest. MK: restaurants ran at 25 to 50 percent capacity in most States and indoor dining was closed in California from July 13, in New York City until September 30, in New Jersey until September 4 and in Philadelphia until September 8; schools opened remote or hybrid, closing the school-meal channel a second semester; State fairs were cancelled in Oregon, Ohio, Minnesota, Iowa, Kansas and North Carolina and reduced to youth livestock shows in Missouri. TR: the land-border notifications and the Title 42 order continued; the import surge began to congest the ports. IN: the FEMA export allocation and scarce-materials designation governed the PPE every plant had to buy; the summer 2020 reopening of the supplier plants ran at reduced capacity. WF: the FFCRA mandates ran the whole quarter; schools reopened remote; the State workplace standards made exclusion of exposed workers a legal duty. CB: the entry proclamations and land-border rules continued; the customer base operated under the capacity and gathering orders.
During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely Executive Order 13917 and the CDC-OSHA guidance it enforced (Ex. SEC-20-001; Ex. SEC-20-028), the plant and farm standards of Washington, Oregon, Michigan, North Carolina, Virginia, Kentucky, New Jersey, Pennsylvania, Minnesota and Dallas County (Ex. SEC-20-031; Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-058; Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-059; Ex. SEC-20-036; Ex. MI-042; Ex. SEC-20-043; Ex. SEC-20-044; Ex. SEC-10-042; Ex. SEC-10-051; Ex. SEC-10-020; Ex. PA-008; Ex. SEC-10-045; Ex. MET-DFW-024), the capacity-limited reopening orders and the statewide face-covering orders of every State (Ex. TX-021; Ex. TX-022; Ex. CA-002; Ex. WA-035; Ex. SEC-10-037; Ex. MN-027; Ex. CO-031; Ex. LA-014), the remote and hybrid school orders of the 2020-21 year (Ex. ECO-B-028; Ex. ECO-B-049; Ex. ECO-B-106; Ex. MET-HOU-040; Ex. MET-LA-009), the State traveler quarantines and the metro checkpoint, quarantine and screening orders (Ex. MET-CHI-019; Ex. MET-NYC-008; Ex. MET-NYC-009; Ex. MET-HOU-020), Proclamations 10014 and 10052 and the Department of State's post-by-post resumption (Ex. SEC-20-009; Ex. SEC-20-010; Ex. AGY-FED-LABOR-IMMIGRATION-061), the land-border notifications and the Title 42 order (Ex. ECO-A-024; Ex. ECO-A-044; Ex. ECO-A-016), the FEMA export-allocation rule and the scarce-materials designation (Ex. ECO-A-066; Ex. ECO-A-069), and the FFCRA leave mandates (Ex. FED-170; Ex. ECO-B-003), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by holding every plant and farm to distancing, spacing, testing, housing and face-covering rules that reduced throughput, by keeping the seasonal workforce's admission conditional on consular capacity and presidential exception, by holding the industry's food-service and school customers to fractional capacity or closure, and by governing the borders, ports and supplier plants through which its product moves and its inputs arrive.
The fourth quarter of 2020
On October 1, 2020 the third quarter's regime was in force in every State. The winter re-tightening began in October and ran through the quarter: Chicago's business curfew from October 23 and the State's suspension of indoor dining in Cook County from October 28 and 30; Texas's GA-32 of October 7 with the hospitalization trigger that cut the Dallas-Fort Worth and other regions back to 50 percent on December 3; Michigan's MDHHS orders of October 5, October 29 and November 15 (the three-week pause closing indoor dining, high schools and colleges from November 18) and MIOSHA's emergency rules of October 14, which required every employer to prohibit in-person work that could feasibly be done remotely; Washington's Proclamation 20-25.8 of November 15, 2020 (effective November 17; indoor dining closed from November 18) closing indoor dining, gyms and indoor entertainment to January 11, 2021 (Ex. WA-047); Oregon's two-week freeze of November 18 and its county framework of December 3; Illinois's Tier 3 of November 20 closing indoor dining statewide; Minnesota's Executive Order 20-99 (issued November 18, effective November 20) closing on-premises food service; New Mexico's reset of November 16; Colorado's Level Red of November 20 (no personal gatherings; indoor dining prohibited; offices at 10 percent); California's Limited Stay at Home Order of November 21 and Regional Stay at Home Order of December 3, operative in the Southern California and San Joaquin Valley regions from December 6 and the Bay Area from December 17, closing all in-person dining, personal care and most non-retail sectors and limiting hotels to essential travel; Pennsylvania's mitigation and telework orders of November 23 and its limited-time order of December 10 (effective December 12); Kentucky's school closure of November 23; Virginia's Executive Order 72 of December 10 (effective December 14) with its midnight curfew and ten-person cap; New York City's second closure of indoor dining from December 14; Los Angeles County's suspension of all in-person dining from November 25 and its Revised Temporary Targeted Safer at Home Order of December 30; Philadelphia's Fall/Winter Order of November 20 ("[u]nless impossible, all businesses must conduct their operations remotely," restated December 30); Boston's rollback of December 16; St. Louis County's Safer At Home Order of November 17.158 The occupational-safety layer thickened: Virginia's emergency temporary standard ran the quarter; Oregon OSHA's OAR 437-001-0744 took effect November 16 for every workplace; Cal/OSHA's emergency temporary standard took effect November 30 for every employer, every labor camp and every crew vehicle in California; MIOSHA's rules from October 14; New Jersey's Executive Order 192 from November 5 imposed mandatory protocols on every workplace; Washington's housing rules as readopted September 10 governed the fall harvest; Michigan's testing order governed every camp and plant.159 The federal layer: the entry proclamations; Proclamations 10014 and 10052, carried to March 31, 2021 by Proclamation 10131 on December 31; the land-border notifications of September 23, October 22, November 23 and December 22, 2020; the Title 42 order of October 13; the FEMA export-allocation rule as extended December 31 to June 30, 2021; the scarce-materials designation; the FFCRA mandates to December 31; the H-2A rule of December 18; the CDC's pre-departure testing order for arrivals from the United Kingdom from December 28; Executive Order 13917.160 On December 31, 2020 every one of those instruments was in force, and California, Illinois, Michigan, Minnesota, Washington, Oregon, New Mexico, Colorado, Pennsylvania, Virginia, New York City, Los Angeles, Philadelphia, Boston and St. Louis were under their winter regimes.
FP: the fall harvest and the winter vegetable, citrus and greenhouse seasons ran under the Washington housing rules, Cal/OSHA's housing and transport standard from November 30, Oregon OSHA's rule from November 16, Michigan's testing order and Virginia's standard; the State stay-at-home and curfew orders of the winter confined the workforce. PK: every plant operated under Executive Order 13917, its State's manufacturing standard and, in Michigan, Virginia, Oregon and California, an occupational-safety standard requiring written plans, screening, distancing, exclusion of the exposed and, in Michigan, remote work wherever feasible; Kentucky's whole-shift distancing and North Carolina's surgical-mask rule continued; Chicago's every-shift screening continued. LB: the immigrant and H-2B suspensions ran to year end and beyond; consular processing remained post by post; the land borders remained limited; the winter crews of California, Arizona and Florida arrived under traveler quarantines and, in California from December 30, Los Angeles County's ten-day quarantine of arrivals from outside Southern California. MK: indoor dining closed again in California, Illinois, Michigan, Minnesota, Washington, Oregon, New Mexico, Colorado, New York City, Los Angeles, Philadelphia, Boston and St. Louis County between November 16 and December 14; the holiday food-service season did not occur in those markets; schools returned to remote instruction in Michigan and Kentucky and stayed remote in most of California. TR: the land borders, the Title 42 order and the ports' congestion continued. IN: the FEMA allocation and scarce-materials designation were extended; the supplier plants ran under the same winter orders. WF: the FFCRA mandates ran to December 31; the State standards made exclusion of exposed workers a legal duty; the schools closed again in Michigan and Kentucky. CB: the customer base was confined again by the stay-at-home, curfew and gathering orders of the winter.
During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the winter closure, curfew and capacity orders of California, Illinois, Michigan, Minnesota, Washington, Oregon, New Mexico, Colorado, Pennsylvania, Virginia, Texas and the largest metros (Ex. CA-020; Ex. CA-021; Ex. IL-031; Ex. MI-060; Ex. MN-032; Ex. WA-047; Ex. OR-035; Ex. NM-041; Ex. CO-037; Ex. PA-022; Ex. PA-023; Ex. PA-028; Ex. VA-016; Ex. TX-025; Ex. MET-DFW-027; Ex. MET-LA-011; Ex. MET-LA-012; Ex. MET-CHI-021; Ex. MET-CHI-016; Ex. MET-PHL-010; Ex. MET-BOS-010; Ex. MET-STL-074), the Cal/OSHA, Oregon OSHA, MIOSHA, Virginia and New Jersey workplace standards (Ex. SEC-10-041; Ex. SEC-10-054; Ex. SEC-10-024; Ex. SEC-10-042; Ex. SEC-10-021), the Washington housing rules as readopted and the Michigan testing order (Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-058; Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-059; Ex. MI-042), Executive Order 13917 and the North Carolina and Kentucky plant rules (Ex. SEC-20-001; Ex. SEC-20-044; Ex. SEC-10-051), Proclamations 10052 and 10131 (Ex. SEC-20-010; Ex. SEC-20-011), the Title 42 order and the land-border notifications (Ex. FED-037; Ex. ECO-A-029; Ex. ECO-A-049), the FEMA export-allocation rule and the scarce-materials designation (Ex. ECO-A-067; Ex. ECO-A-069), the H-2A rule of December 18, 2020 (Ex. SEC-20-007), and the FFCRA leave mandates (Ex. FED-170), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by closing the industry's food-service channel a second time in its largest markets, by holding every plant and camp to standards that required written plans, screening, distancing, exclusion and, in Michigan, remote work wherever feasible, by suspending the entry of the seasonal workforce, and by confining the workforce and the customer base through the winter.
The first quarter of 2021
On January 1, 2021 the winter regimes were in force: California's Regional Stay at Home Order to January 25; Illinois's Tier 3 to January 15 and Tier 1 from January 23; Michigan's MDHHS orders (indoor dining reopened at 25 percent only on February 1); Washington's rollback to January 11 and the Roadmap phases from then; Oregon's county framework; New Mexico's red-yellow-green framework; Colorado's Level Red to January 4 and Level Orange thereafter; Pennsylvania's limited-time order to January 4 and its telework order to April 4; Virginia's Executive Order 72; New York City's indoor dining closed to February 12; Los Angeles County's targeted order to January 25 and its Red tier (non-essential offices still ordered to "cease in-person operations until further notice") through April 4; Philadelphia's telework mandate to February 28; Boston's and Cambridge's rollbacks into February.161 The occupational-safety layer governed every plant, camp and crew vehicle in California, Oregon, Michigan and Virginia; Virginia's standard became permanent on January 27; Washington readopted its housing rules on January 8; Michigan's testing order continued; New Jersey's Executive Order 192 continued.162 The federal layer: Proclamation 10143 continued the Schengen Area, United Kingdom, Ireland and Brazil suspensions from January 26, 2021 and added South Africa from January 30, 2021 (Ex. FED-207); the CDC's amended order required a negative pre-departure test of every air passenger from any foreign country from January 26; the CDC's conveyance order took effect at 11:59 p.m. on February 1 and the TSA's Security Directive 1582/84-21-01 enforced it on every bus, rail and ferry system; the land-border notifications of January 19, February 23 and March 19, 2021; the Title 42 order; the FEMA rule to June 30; the scarce-materials designation extended February 1; Proclamations 10052 and 10131 to March 31; Proclamation 10014 to February 24; the H-2A rule of December 18 with its window to June 16; OSHA's National Emphasis Program of March 12; Executive Order 13917; Executive Order 14017 of February 24 ordering the supply-chain reviews.163 Texas's GA-34 ended the State's general regime on March 10; Mississippi's on March 3; Wyoming's on March 16; Arizona's on March 25; thirty-one States and the District kept capacity or gathering limits in force on March 31, 2021.164
FP: the winter vegetable and citrus seasons in California and Arizona ran under Cal/OSHA's housing and transport standard, Los Angeles County's and the Regional order's confinement of the workforce to January 25, and Arizona's capacity rules to March 25; Washington's and Oregon's growers prepared the 2021 season under housing rules readopted January 8 and OAR 437-001-0744; Michigan's under the testing order. PK: every plant operated under Executive Order 13917, its State's standard and the winter face-covering orders, airborne-transmission controls on every indoor workplace and public setting; from February 1 every crew bus and worker commute by conveyance was under the federal conveyance order's airborne-transmission controls. LB: the immigrant suspension ran to February 24 and the H-2B suspension to March 31; consulates remained post by post; the pre-departure testing order added a condition to every arrival by air from January 26; the land borders remained limited. MK: indoor dining remained closed or at 25 percent in California, New York City, Los Angeles, Philadelphia, Chicago, Michigan and Minnesota into February and March; schools remained remote or hybrid in most of the largest States through the quarter. TR: the conveyance order governed every carrier's drivers at every hub from February 1; the land borders and the Title 42 order continued; the White House found on February 24 that the pandemic had exposed the fragility of the supply chains. IN: the same. WF: the schools; the State standards' exclusion duties; the conveyance order on every commute. CB: the winter confinement orders to January 25 and beyond.
During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the winter closure and capacity orders of California, Illinois, Michigan, Minnesota, Washington, Oregon, New Mexico, Colorado, Pennsylvania, Virginia, New York City, Los Angeles, Philadelphia and Boston (Ex. CA-020; Ex. IL-031; Ex. MI-060; Ex. MN-032; Ex. WA-056; Ex. OR-035; Ex. NM-041; Ex. CO-037; Ex. PA-022; Ex. VA-016; Ex. NY-008; Ex. MET-LA-012; Ex. MET-LA-014; Ex. MET-PHL-012; Ex. MET-BOS-010), the Cal/OSHA, Oregon OSHA, MIOSHA, Virginia and New Jersey workplace standards (Ex. SEC-10-041; Ex. SEC-10-054; Ex. SEC-10-024; Ex. SEC-10-043; Ex. SEC-10-021), the Washington housing rules as readopted January 8, 2021 and the Michigan testing order (Ex. SEC-20-034; Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-061; Ex. MI-042), the CDC conveyance order and the TSA security directive (Ex. FED-020; Ex. ECO-B-005), Proclamations 10143, 10052 and 10131 (Ex. FED-207; Ex. SEC-20-010; Ex. SEC-20-011), the CDC pre-departure testing order (Ex. FED-042), the Title 42 order and the land-border notifications (Ex. FED-037; Ex. ECO-A-032; Ex. ECO-A-052), the FEMA export-allocation rule and the scarce-materials designation (Ex. ECO-A-067; Ex. ECO-A-070), the H-2A rule of December 18, 2020 (Ex. SEC-20-007), OSHA's National Emphasis Program (Ex. SEC-10-014), and Executive Order 13917 (Ex. SEC-20-001), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by holding the industry's food-service channel closed or at a quarter of capacity in its largest markets for most of the quarter, by holding every plant, camp and crew vehicle to standards that reduced capacity and excluded workers, by conditioning the admission of the seasonal workforce on suspended or post-by-post consular processing and on entry suspensions that ran to February 24 and March 31, and by placing every commute and every crew transport under the federal conveyance order.
The second quarter of 2021
On April 1, 2021 California's Blueprint tiers, New York's capacity limits, New Jersey's Executive Order 192, Illinois's Phase 4, Michigan's MDHHS orders, Minnesota's Executive Order 21-11, Washington's Roadmap phases, Oregon's county framework, New Mexico's framework, Colorado's dial, Pennsylvania's mitigation orders, Massachusetts's Phase 4 rules, Maryland's capacity orders, Virginia's Executive Order 72 as amended and the capacity, gathering or face-covering rules of the other jurisdictions whose end dates in the fifty-State table fall after April 1, 2021 (thirty-one States and the District in all) were in force; Los Angeles County still ordered non-essential office-based businesses to "cease in-person operations until further notice" through April 4.165 The general restrictions then ended State by State: Colorado handed the dial to its counties on April 16 (Denver, Tri-County, Jefferson and Boulder kept capacity limits to mid-May and an observation period to mid-August); Alabama's last order expired May 31; Maryland's capacity orders ended May 15; Kentucky's June 11; Illinois's June 11; Pennsylvania's mitigation orders May 31 and its face-covering order June 28; Massachusetts's May 29; New Jersey's June 4; Connecticut's May 20; Virginia's May 28; Ohio's June 2; California's June 15; New York's June 15 (emergency June 24); Michigan's June 22; Oregon's June 30; Washington's June 30 (Washington Ready July 1); Minnesota's caps May 27 and its remaining operating orders June 30, with the peacetime emergency ending July 1 (Ex. MN-038; Ex. MN-041); New Mexico's July 1; Hawaii's never within the period.166 The occupational-safety layer did the opposite: Oregon OSHA adopted OAR 437-004-1115 for agricultural labor housing on April 30 and made OAR 437-001-0744 permanent on May 4; Washington revised its housing rules for vaccinated occupants on May 7 and readopted them May 28 and June 1; Cal/OSHA readopted its standard on June 17 with the housing and transport sections; Virginia's permanent standard ran the quarter; Michigan re-issued its testing order on June 11; New York's HERO Act took effect June 4; OSHA's Healthcare Emergency Temporary Standard took effect June 21 with compliance dates of July 6 and 21; OSHA's National Emphasis Program directed inspections to meat and poultry plants from March 12.167 The federal layer: Proclamations 9984, 9992 and 10143, joined by Proclamation 10199 (India) from May 4; the TSA's directive -01A from May 12 under the conveyance order; the pre-departure testing order; the land-border notifications of April 22, May 24 and June 23, 2021; the Title 42 order; the FEMA rule to June 30; the scarce-materials designation; the H-2A rule's window to June 16; the H-2B supplemental-cap rule of May 25; the White House 100-day review and Supply Chain Disruptions Task Force of June 8 for "agriculture and food"; Executive Order 13917.168 North Carolina's Executive Order 147 rules were lifted May 14; New Jersey's Executive Order 122 and the general requirements of Executive Order 192 were lifted May 28 and June 4, with the residual EO 192 requirements carried by Executive Orders 242 and 243; MIOSHA's rules ended June 22; Washington's Proclamation 20-57 was rescinded effective July 1 (Ex. WA-073); Minnesota's preparedness-plan orders ended with the emergency on July 1.169
FP: the 2021 planting and early harvest ran under Oregon's new labor-housing rule from April 30, Washington's revised and readopted housing rules, Cal/OSHA's standard, Virginia's standard, Michigan's testing order and, in Los Angeles County, the Red and Orange tier orders to May 5. PK: every plant operated under Executive Order 13917, the National Emphasis Program's inspection targeting, its State's standard (California, Oregon, Virginia, Michigan to June 22, New Jersey to June 4, Kentucky to June 11) and the face-covering orders, airborne-transmission controls on every indoor workplace, that ended between April and June. LB: Proclamation 10199 added India to the entry suspensions; the consulates remained post by post; the land borders remained limited; the H-2B cap rule of May 25 governed the summer's nonagricultural food-supply workforce; every crew bus was under the conveyance order. MK: the food-service channel reached full capacity in the largest markets only between June 11 and July 1; schools remained hybrid in many States to the end of the 2020-21 year. TR: the conveyance order and TSA directive, the land borders, the Title 42 order and the ports' congestion continued; the White House found the shortages "ongoing." IN: the FEMA rule ran to June 30; the chip shortage reached equipment and parts; the Beige Book of April 14 recorded "ongoing supply chain disruptions." WF: the State standards' exclusion duties; the Healthcare ETS from June 21; the schools. CB: the entry proclamations and land borders; the capacity orders to their end dates.
During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the Cal/OSHA standard as readopted June 17, 2021 (Ex. SEC-10-041), Oregon's agricultural labor housing rule of April 30, 2021 and its permanent workplace rule of May 4, 2021 (Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-053; Ex. SEC-10-055), Washington's housing rules as revised May 7 and readopted May 28 and June 1, 2021 (Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-063; Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-065; Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-064), Virginia's permanent standard (Ex. SEC-10-043), the New York HERO Act (Ex. SEC-10-029), the Michigan testing order as re-issued June 11, 2021 and MIOSHA's rules to June 22 (Ex. MI-042; Ex. SEC-10-024), Washington's Proclamation 20-57 to its rescission on July 1, 2021 (Ex. SEC-20-031; Ex. WA-073), the general requirements of New Jersey's Executive Order 192 to May 28 and June 4 and its residual requirements through Executive Orders 242 and 243 (Ex. SEC-10-021; Ex. NJ-050; Ex. NJ-051), the capacity, gathering and face-covering orders of every State to their end dates between April 16 and July 1, 2021 (Ex. CO-051; Ex. AL-051; Ex. MD-030; Ex. KY-049; Ex. IL-037; Ex. PA-035; Ex. MA-048; Ex. NJ-050; Ex. CT-046; Ex. VA-017; Ex. OH-048; Ex. CA-027; Ex. NY-054; Ex. NY-057; Ex. MI-076; Ex. OR-043; Ex. WA-065; Ex. MN-041; Ex. NM-060; Ex. MET-LA-014; Ex. MET-LA-015; Ex. MET-DEN-014), OSHA's National Emphasis Program and Healthcare Emergency Temporary Standard (Ex. SEC-10-014; Ex. FED-080), the H-2B supplemental-cap rule and the H-2A rule's window to June 16, 2021 (Ex. AGY-FED-LABOR-IMMIGRATION-014; Ex. SEC-20-007), Proclamations 9984, 9992, 10143 and 10199 (Ex. FED-200; Ex. FED-201; Ex. FED-207; Ex. FED-208), the CDC conveyance order and TSA directive (Ex. FED-020; Ex. FED-051), the pre-departure testing order (Ex. FED-042), the Title 42 order and the land-border notifications (Ex. FED-037; Ex. FED-232; Ex. FED-255), the FEMA export-allocation rule and the scarce-materials designation (Ex. ECO-A-067; Ex. ECO-A-070), and Executive Order 13917 (Ex. SEC-20-001), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by holding every farm, camp, crew vehicle and plant in the principal producing States to written plans, housing limits, transport rules, exclusion duties and inspection targeting, by holding the food-service channel below full capacity in the largest markets until the last three weeks of the quarter, by adding India to the entry suspensions while the consulates remained post by post and the land borders limited, and by placing every commute and crew transport under the federal conveyance order.
The third quarter of 2021
On every day from July 1 through September 30, 2021, employers in agriculture, food processing and agribusiness operated under orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, and those orders caused a temporary delay, interruption or termination of a more than nominal portion of their operations. The instruments are federal (an unrevoked Defense Production Act order on every meat and poultry plant; a national emphasis program naming the slaughter and processing industries by code; an airborne-transmission control on every conveyance and transportation hub; entry suspensions covering China, Iran, the twenty-six Schengen countries, the United Kingdom, Ireland, Brazil, South Africa and India; land-border limits renewed three times inside the quarter; a Title 42 order reassessed and continued inside the quarter; a supplemental H-2B rule running to September 30; scarce-materials designations; vaccination orders on the federal workforce and federal contractors), State (occupational-safety standards regulating the labor camp, the crew bus, the line and the exposed worker in California, Oregon, Washington, Virginia and New York; Delta-wave face-covering, gathering and vaccination orders in seven States and the District (Nevada, Louisiana, Oregon, New Mexico, Washington, Illinois and Hawaii, whose statewide requirement never lapsed), with California's orders reaching the unvaccinated indoors and everyone in K-12, health-care and transit settings; school and health-care orders in most States), local (indoor face-covering, vaccination-proof, quarantine and courthouse orders in more than forty of the largest counties and cities, several naming agricultural and manufacturing workplaces), tribal and territorial (Navajo, Yakama, Mescalero; Puerto Rico, Guam, American Samoa). This section states them one by one, states how they reached the functions, applies the continuing-suspension analysis, answers the Service's grounds for the quarter and states the finding. It closes by naming the instruments this analysis does not claim were in force, so that the proof rests visibly on none of them.
A. The Service's premise about the quarter, and what the statute asks
The Service's letters state that there were no governmental orders related to COVID-19 in effect during the third quarter of 2021 that could have fully or partially suspended the employer's trade or business. The premise is not a legal position; it is an assertion of fact about the state of the public record between July 1 and September 30, 2021, and it is false for every employer in this industry in every State.
Section 3134(c)(2)(A)(ii)(I) asks, for that quarter, whether "the operation of the trade or business ... is fully or partially suspended during the calendar quarter due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes) due to the coronavirus disease 2019 (COVID-19)."170 Congress re-enacted those words on March 11, 2021 for wages paid after June 30, 2021, when the stay-at-home orders of 2020 had ended in most States and the instruments in force were of the kind listed below, and it left the quarter in place when it terminated the fourth quarter on November 15, 2021.171 The Service carried its own suspension rules into the quarter by Notice 2021-49 on August 4, 2021, "[a]pplying the same rules as for the first two quarters of 2021," and its own recovery-startup definition for the quarter presupposes suspension-based eligibility in it.172 A partial suspension is "a temporary delay, interruption, or termination of a portion an employer's business"; "due to" is but-for; and the source and addressee of the order are irrelevant.173 The question for the quarter is therefore whether orders limiting commerce, travel or group meetings were in force and whether a portion of the industry's operations was delayed, interrupted or terminated because of them. The inventory answers it.
B. The instruments in force July 1 to September 30, 2021
B-1. Executive Order 13917 (Ex. SEC-20-001)
Issuer: the President, under section 101 of the Defense Production Act, 50 U.S.C. 4511. Date: April 28, 2020; published 85 Fed. Reg. 26313 (May 1, 2020). Operative clause: the Secretary of Agriculture "shall take all appropriate action under that section to ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by the CDC and OSHA," and is delegated the President's authority to determine "the proper nationwide priorities and allocation of all the materials, services, and facilities necessary to ensure the continued supply of meat and poultry."174 Enforcement: the Act's penalties, 50 U.S.C. 4513. Status: in force on July 1 and September 30, 2021; never revoked during the period. Functions: PK (every meat and poultry plant operated under an order that made the CDC-OSHA guidance on distancing, barriers, screening, face coverings, cohorting and exclusion the enforceable condition of its continued operation); IN and MK (priority and allocation authority over the plants' inputs and output).
B-2. OSHA's Revised National Emphasis Program, DIR 2021-03 (Ex. SEC-10-015; Ex. FED-083)
Issuer: OSHA, Directorate of Enforcement Programs. Date: July 7, 2021, superseding DIR 2021-01 of March 12, 2021 (Ex. SEC-10-014), which was in force on July 1. Operative clause: a national emphasis program directing programmed inspections to the industries with the highest exposure, listed by NAICS code in Appendix A, including animal (except poultry) slaughtering (311611), meat processed from carcasses (311612) and poultry processing (311615).175 Enforcement: inspections and citations under the OSH Act, on the general duty clause and the respiratory-protection, sanitation and recordkeeping standards. Status: in force from July 7 through September 30, 2021 and beyond. Functions: PK (the plant operated under the announced certainty of programmed inspection and the documented controls that inspection demands).
B-3. The Cal/OSHA COVID-19 Prevention Emergency Temporary Standards as readopted June 17, 2021, 8 C.C.R. §§ 3205, 3205.1-3205.4 (Ex. SEC-10-041; Ex. CA-024)
Issuer: the California Occupational Safety and Health Standards Board, with Office of Administrative Law approval. Dates: effective November 30, 2020; readopted with amendments June 17, 2021; in force through the quarter (second readoption December 16, 2021). Operative clauses: every employer must maintain a written COVID-19 prevention program, exclude COVID-19 cases and close contacts from the workplace with pay, provide testing, report outbreaks and investigate exposures (§ 3205); outbreak and major-outbreak duties (§§ 3205.1-3205.2); employer-provided housing, which "includes a 'labor camp,'" must be assigned by cohort, ventilated, cleaned and configured for distancing, with isolation for cases (§ 3205.3); employer-provided transportation, "including transportation to and from ... agricultural fields," must be cohorted, screened, masked and ventilated (§ 3205.4).176 Enforcement: citations and civil penalties under the Labor Code. Status: in force July 1 and September 30, 2021. Functions: FP (the labor camp and the crew vehicle in the State with the largest farm workforce), PK (every plant in California), WF (exclusion of every case and close contact with pay).
Issuers: Oregon OSHA (under ORS 654.025(2) and 656.726(4)); the Oregon Health Authority; the Governor. Dates: OAR 437-004-1115 adopted April 30, 2021 and amended June 30, 2021 as a 180-day temporary rule in force to October 24, 2021; OAR 437-001-0744 permanent from May 4, 2021; AO 10-2021 adopted and effective August 13, 2021; OAR 333-019-1025 effective August 13, 2021 (indoors) with outdoor requirements from August 27; Executive Order 21-15 effective June 30, 2021 and in effect to December 31, 2021. Operative clauses: OAR 437-004-1115 sets the COVID-19 requirements for employer-provided labor housing (occupancy, spacing, ventilation, sanitation, isolation, notification); OAR 437-001-0744 requires every employer to maintain an exposure assessment, an infection control plan, notification and exclusion procedures and ventilation measures; AO 10-2021 renewed, as one of Oregon OSHA's workplace exposure controls, the requirement that employees wear face coverings in every indoor workplace and in vehicles; OAR 333-019-1025 required face coverings in every indoor space open to the public.177 Enforcement: citations and civil penalties under ORS 654.071 and 654.086; Oregon Health Authority enforcement under ORS 433. Status: each in force on September 30, 2021; OAR 437-004-1115 and OAR 437-001-0744 in force on July 1, 2021. Functions: FP (every labor camp in the berry, cherry, pear, hop and nursery regions through the whole harvest), PK (every plant), WF.
Issuers: the Department of Labor and Industries (RCW 49.17); the Department of Health (RCW 70.114A.065, 43.70.335); the Secretary of Health; the Governor (RCW 43.06.220). Dates: the housing rules readopted May 28 (L&I) and June 1, 2021 (DOH) for 120 days under RCW 34.05.350(2), a term running to September 25 and September 29, 2021; Order 20-03.4 issued August 19, effective August 23, 2021; Proclamation 20-25.15 issued August 20, effective August 23, 2021; Proclamation 21-14 issued August 9, 2021 with a vaccination deadline of October 18, 2021; Washington Ready from July 1, 2021. Operative clauses: the housing rules carried the 2020 requirements forward with provisions for fully vaccinated occupants (distancing in sleeping, cooking, eating and bathing facilities; cohorting; isolation space; management plans); Order 20-03.4 reinstated face coverings for every person in indoor public settings regardless of vaccination status, an airborne-transmission control on every indoor workplace and public setting in the State; Proclamation 20-25.15 prohibited businesses from admitting unmasked persons and so made the control every business's duty to enforce; Proclamation 21-14 required vaccination of every health-care and State worker by October 18, 2021; Washington Ready kept the large-indoor-event limit and the emergency in force.178 Enforcement: gross misdemeanor under RCW 43.06.220(5); L&I citations. Status: the housing rules in force on July 1 and through late September; the face-covering orders from August 23 through September 30. Functions: FP (every labor camp in the Yakima Valley, Wenatchee and Columbia Basin through the apple, cherry, pear and hop harvests), PK, WF, MK.
B-6. Virginia's Final Permanent Standard, 16VAC25-220 (Ex. SEC-10-043)
Issuer: the Safety and Health Codes Board. Dates: effective January 27, 2021; amended effective September 8, 2021; revoked March 23, 2022. Operative clauses: every employer in the Commonwealth must classify workplace exposure, exclude employees "known or suspected to be infected," apply return-to-work criteria, and, for very high, high and medium exposure workplaces, maintain an infectious disease preparedness and response plan; the emergency temporary standard it replaced had named "Poultry, meat, and seafood processing; agricultural and hand labor" among its classifications.179 Enforcement: VOSH citations and civil penalties. Status: in force July 1 and September 30, 2021. Functions: PK (the Shenandoah Valley and Eastern Shore poultry plants), FP, WF.
B-7. New York: the HERO Act (Ex. SEC-10-029), the Commissioner of Health's designation of September 6, 2021 (Ex. SEC-10-031), 10 NYCRR 2.60 (Ex. ECO-B-054) and 10 NYCRR 2.61 (Ex. ECO-B-055)
Issuers: the Legislature (L. 2021, ch. 105); the Commissioner of Health; the Department of Labor. Dates: the Act effective June 4, 2021; the Department of Labor's standard and model plan July 6, 2021; the designation September 6, 2021, continued to October 31, 2021; 10 NYCRR 2.61 August 26, 2021 with first doses by September 27; 10 NYCRR 2.60 August 27, 2021. Operative clauses: every employer must adopt an airborne infectious disease exposure prevention plan meeting the Department of Labor's standard, and upon designation must activate it, with screening, face-covering, distancing, hygiene and exposure-control duties; the definition of employee reaches farmworkers; 10 NYCRR 2.60 places every school under a face-covering requirement; 10 NYCRR 2.61 requires vaccination of every hospital and nursing-home worker.180 Enforcement: civil penalties under Labor Law § 218-b; Public Health Law enforcement. Status: the Act and standard in force July 1; the designation from September 6 through September 30, 2021. Functions: FP (every farm employer in the State), PK, WF.
B-8. Michigan and the Midwest
Michigan's MDHHS testing order for agricultural and food-processing employees, re-issued June 11, 2021, was in force on July 1, 2021 and rescinded that day (Ex. MI-075; Ex. MI-078), and is relied on for that day alone; the MDHHS residential care testing order of May 5, 2021 and prison order of June 25, 2021 ran the quarter (Ex. MI-070; Ex. MI-077); Oakland County's Emergency Order 2021-01 of August 24, 2021 and Wayne County's order of August 27, 2021 placed every school and day care in the Detroit suburbs under face-covering requirements; Detroit declared a continued emergency for September 1 through December 31, 2021.181 Illinois's Executive Order 2021-20 reinstated the universal indoor face-covering requirement, an airborne-transmission control on every indoor workplace and public setting, from August 30, 2021 (Ex. IL-042; Ex. SEC-10-036), following Oak Park (August 6), Chicago (August 20) and Cook County (August 23).182 Minnesota's peacetime emergency ended July 1, 2021, and St. Paul's Executive Order 2021-33 of August 3 and Ramsey and Hennepin Counties' orders of August 2021 placed every City and county facility under a face-covering requirement.183 Missouri's St. Louis City Order No. 1 (2021) of July 26, 2021 required face coverings in every indoor public building and conveyance and remained in force after the Attorney General's suit reached the County's parallel order; Kansas City's Order 21-01 (August 2) and Committee Substitute for Ordinance No. 210694 (August 19) required face coverings "at indoor places of public accommodation," with suspension of the certificate of occupancy as a sanction; Jackson, Johnson and Wyandotte Counties followed between August 5 and 9.184 Nebraska's Lincoln-Lancaster County directed health measure of August 24, 2021 and Iowa City's order of August 19, 2021 reinstated indoor face-covering requirements, airborne-transmission controls on every indoor public place; Dane County, Wisconsin did so from August 19.185 Ohio's Columbus Ordinance 2388-2021, effective September 14, 2021, required face coverings in every place of business and in manufacturing, construction and agricultural workplaces where distancing was difficult, and Dayton's ordinance, adopted September 15, took effect September 17, 2021.186 Each face-covering order in this item was an airborne-transmission control on the indoor workplaces, public buildings, schools and conveyances it named, and Kansas City and Columbus placed the duty and the sanction on the business itself (suspension of the certificate of occupancy; the ordinance's express coverage of manufacturing and agricultural workplaces). Functions: PK (the Midwest plants), FP (the Michigan fruit and vegetable harvest on July 1; every Ohio and Wisconsin farm within the municipal orders), WF, MK.
B-9. The federal entry, border and consular layer
Proclamations 9984 (China), 9992 (Iran), 10143 (Schengen Area, United Kingdom, Ireland, Brazil, South Africa) and 10199 (India) suspended the entry of persons who had been in those countries on every day of the quarter, revoked only at 12:01 a.m. on November 8, 2021 (Ex. FED-200; Ex. FED-201; Ex. FED-207; Ex. FED-208; Ex. FED-209).187 The Department of Homeland Security's notifications of June 23, July 22, August 23 and September 22, 2021 limited both land borders to essential travel through October 21, 2021 (Ex. FED-232; Ex. ECO-A-036; Ex. ECO-A-037; Ex. FED-235; Ex. FED-255; Ex. ECO-A-056; Ex. ECO-A-057; Ex. FED-258).188 The CDC's Title 42 order of October 13, 2020 governed the land ports on July 1 and was reassessed and continued on August 2, 2021 with the finding that suspension remained "appropriate at this time for all covered noncitizens" (Ex. FED-037; Ex. FED-038).189 The CDC's pre-departure testing order conditioned every arrival by air from any foreign country (Ex. FED-042).190 The Department of State's routine services remained subject to post-by-post limits (Ex. AGY-FED-LABOR-IMMIGRATION-061), and the H-2 interview waivers announced March 26, 2020 remained the mechanism of processing (Ex. SEC-20-013).191 The Department of Homeland Security and the Department of Labor's temporary final rule of May 25, 2021 increasing the fiscal-year 2021 H-2B cap ran, as to its 20 C.F.R. amendments, through September 30, 2021 (Ex. AGY-FED-LABOR-IMMIGRATION-014), and the H-2A workers admitted under the December 18, 2020 rule worked the quarter on that rule's terms (Ex. SEC-20-007; Ex. AGY-FED-LABOR-IMMIGRATION-006).192 Status: each in force July 1 and September 30, 2021. Functions: LB (every foreign hire), TR and CB (every cross-border shipment and buyer), MK (export).
B-10. The CDC conveyance order and the TSA security directives (Ex. FED-020; Ex. FED-051; Ex. FED-052), with the Coast Guard's bulletins on their application at cargo handling facilities (Ex. AGY-USCG-PORTS-037; Ex. AGY-USCG-PORTS-038; context, not orders)
Issuers: the CDC, under 42 U.S.C. 264 and 42 C.F.R. 70.2; the TSA. The Coast Guard's Marine Safety Information Bulletins MSIB 02-21 Change 2 (June 11, 2021) and Change 3 (September 2, 2021) are the Coast Guard's own account of how the CDC order and the Captains of the Port's orders applied in the maritime transportation system; they are cited as context and not as orders. Dates: the order effective 11:59 p.m. February 1, 2021 "until further notice"; SD 1582/84-21-01A effective May 12, 2021 and expiring September 13, 2021; SD 1582/84-21-01B effective September 14, 2021. Operative clause: "A person must wear a mask while boarding, disembarking, and traveling on any conveyance into or within the United States," and "at any transportation hub"; conveyance operators must require it, and a conveyance operated solely for personal, non-commercial use is the exception; the Coast Guard's bulletins record that the requirement reached every "cargo handling facility."193 The order is an airborne-transmission control on every conveyance and transportation hub in the country, and the universal face covering is its operative term. Enforcement: criminal penalties under 42 U.S.C. 271 and 42 C.F.R. 70.18; TSA civil enforcement; Captain of the Port enforcement at the ports. Status: in force July 1 and September 30, 2021. Functions: LB and FP (every crew bus, van and shuttle operated by a grower or farm labor contractor), TR (every truck driver at every hub and terminal; every port), WF (every commute by bus or rail).
Executive Orders 13909, 13910 and 13911 of March 18, 23 and 27, 2020 remained in force for the duration of the national emergency; the Secretary of Health and Human Services extended the scarce-materials designation on July 7, 2021 to November 15, 2021, so that the accumulation of respirators, gloves and gowns above reasonable demand remained a federal crime through the quarter in which the State and local orders above required this industry to buy them.194 Functions: IN.
The Safer Federal Workforce Task Force's revised Agency Model Safety Principles of July 29, 2021 reinstated face coverings among the workplace exposure controls binding every federal employee and onsite contractor in areas of substantial or high transmission, which reached the Food Safety and Inspection Service inspectors present on every slaughter line; Executive Order 14043 of September 9, 2021 required vaccination of every federal employee; Executive Order 14042 of September 9, 2021 directed COVID-19 safety protocols into every covered federal contract, with the Task Force guidance approved September 24, 2021.195 Status: in force from their dates through September 30, 2021. Functions: HR and PK (the inspectors without whom no line runs), CB (the institutional customers under federal contract), WF.
The Secretary of Health and Human Services renewed the public health emergency determination on July 19, 2021; the President's memorandum of August 17, 2021 continued 100 percent federal cost share for the response; the CDC's eviction orders of June 24, 2021 (in force July 1 to July 31) and August 3, 2021 (by its terms to October 3, 2021 in counties of substantial or high transmission; vacated August 26, 2021, Alabama Ass'n of Realtors v. HHS, 594 U.S. 758 (2021)) governed the residential housing of every worker who rented from July 1 to July 31 and from August 3 to August 26, 2021 (Ex. FED-025; Ex. FED-026).196 Functions: WF.
B-14. The Delta-wave State orders
The Delta-wave State orders restored airborne-transmission controls on every indoor workplace and public setting in the covered jurisdictions; the face covering was their operative term, and several carried gathering limits, vaccination requirements and business-enforcement duties with them. Nevada's Directive 047 of July 27, 2021 required face coverings of every person, vaccinated or not, in public indoor spaces in counties of substantial or high transmission from 12:01 a.m. July 30, 2021 (Ex. NV-041), followed by Directive 048 of August 4 (Ex. NV-042); the District of Columbia's Mayor's Order 2021-097 of July 29 resumed the indoor face-covering requirement from 5:00 a.m. July 31 (Ex. DC-057); Louisiana's Proclamation 137 JBE 2021 of August 2 required face coverings in every indoor space from August 4, renewed August 31 and September 28 (Ex. LA-036; Ex. LA-038; Ex. LA-040); Hawaii's Emergency Proclamation of August 5 and Executive Order 21-05 of August 10 limited social gatherings, restaurants, bars and gyms statewide (Ex. HI-024; Ex. HI-025); Oregon's OAR 333-019-1025 required indoor face coverings from August 13 (Ex. OR-048); New Mexico's Public Health Emergency Order of August 17 required indoor face coverings from August 20, extended September 15 (Ex. NM-067; Ex. NM-070); Washington's Order 20-03.4 required them from August 23 (Ex. WA-078); Illinois's Executive Order 2021-20 from August 30 (Ex. IL-042); California's State Public Health Officer orders of June 11, July 26 and August 5 and its face-covering guidance of July 28 required face coverings of the unvaccinated indoors and of everyone in K-12, health-care and transit settings and required vaccination of every health-care worker by September 30 (Ex. CA-029; Ex. CA-036; Ex. CA-035; Ex. CA-031; Ex. CA-030); New Mexico's orders of August 17 and 23 required vaccination of hospital, congregate-care and Governor's-office workers and vaccination or weekly testing of school workers (Ex. NM-068), and its amended order of September 15, 2021 carried those requirements through the quarter (Ex. NM-071); New Jersey's Executive Orders 242 and 243 carried Executive Order 192's requirements for unvaccinated or unverified employees and daily health checks through the quarter (Ex. NJ-050; Ex. NJ-051).197 Kentucky's Executive Order 2021-585 of August 10 placed every school and child-care setting under a face-covering requirement (Ex. ECO-B-051); Virginia's Order of Public Health Emergency Ten of August 12 placed every K-12 school under one; Pennsylvania's order of August 31 (effective September 7), New Jersey's Executive Order 251 (effective August 9), Connecticut's Executive Order 13A (August 5), Rhode Island's Executive Order 21-87 (August 19), New York's 10 NYCRR 2.60 (August 27), California's K-12 order (July 12), Washington's K-12 proclamation (July 30), Delaware's, Maryland's, Massachusetts's, Nevada's, Oregon's, Hawaii's and the District's school orders did the same (Ex. ECO-B-087; Ex. ECO-B-029; Ex. ECO-B-036; Ex. ECO-B-066; Ex. ECO-B-054; Ex. CA-034; Ex. WA-075).198 Texas's GA-38 of July 29, 2021, Georgia's Executive Order 08.19.21.03 and Florida's Executive Order 21-175 dictated the rules under which businesses in those States operated, and the county orders issued against them (Dallas County, August 11 and 16; Harris County, August 11, 12 and 17; Bexar County, August 10) governed on the ground (Ex. TX-036; Ex. GA-043; Ex. FL-063; Ex. MET-DFW-028; Ex. MET-DFW-031; Ex. MET-HOU-038; Ex. MET-HOU-039; Ex. MET-HOU-052; Ex. MET-SAT-067).199 Status: each in force from its date through September 30, 2021. Functions: PK and FP (every plant and packing house in the covered States and counties), MK (every restaurant, market and institution in them), WF.
B-15. The county and city orders in the producing regions and the markets
The county and city orders of the quarter were workplace and public-setting exposure controls: most were universal indoor face-covering requirements that bound every business to enforce them, and several carried quarantine, screening and vaccination-proof duties. Sacramento County ordered face coverings "regardless of vaccination status ... in all indoor public settings, venues, gatherings, and workplaces" from July 30, 2021, required every business to enforce the rule, and declared that the order "takes precedence over the more permissive ETS regarding employee face coverings" (Ex. MET-SAC-015); Yolo County's face-covering and quarantine orders ran in September (Ex. MET-SAC-072).200 Los Angeles County reinstated universal indoor face coverings from 11:59 p.m. July 17, 2021 and ordered every health-care and home-care worker vaccinated by September 30 (Ex. MET-LA-018; Ex. MET-LA-023); the seven Bay Area health officers reinstated universal indoor face coverings from 12:01 a.m. August 3, 2021, with businesses "required to implement the indoor face covering order" (Ex. MET-SFO-071; Ex. MET-SFO-010; Ex. MET-SFO-049); San Diego County's quarantine order of July 22, 2021 confined every unvaccinated close contact (Ex. MET-SAN-024); Riverside County's quarantine and work-exclusion protocol for critical infrastructure workers ran the quarter (Ex. MET-RIV-017).201 Chicago's Order 2021-1 of August 20, Cook County's Order 2021-10 of August 23 and Oak Park's order of August 6 reinstated universal indoor face-covering requirements with business closure as a sanction (Ex. MET-CHI-026; Ex. MET-CHI-041; Ex. MET-CHI-049); Chicago's Order 2020-9 (Eighth Amended) bound every business to employee self-screening at the start of every shift throughout the quarter (Ex. MET-CHI-018).202 New York City's Key to NYC (Emergency Executive Order 225, August 16; effective August 17; penalties from September 13) forbade every indoor restaurant, bar, food court and catering hall to admit any patron or employee without proof of vaccination (Ex. MET-NYC-017).203 New Orleans reinstated its indoor face-covering requirement from July 31 and required proof of vaccination or a negative test for entry to every restaurant, bar, event space and casino from August 16 (Ex. MET-MSY-027; Ex. MET-MSY-029); Jefferson Parish required indoor face coverings from August 4 (Ex. MET-MSY-063).204 St. Louis City and County from July 26; Kansas City from August 2; Sacramento from July 30; Savannah from July 26 and August 24 (with all event permits revoked through September 30) (Ex. MET-STL-021; Ex. MET-STL-069; Ex. MET-KC-002; Ex. MET-ATL-016; Ex. MET-ATL-017); Atlanta from July 28 (Ex. MET-ATL-063); Montgomery County, Maryland from August 7 and Prince George's County from August 8 (Ex. MET-DCM-023); Baltimore City from August 10 (Ex. MET-BAL-017); Philadelphia from August 12, with grocery stores excluded from the vaccinated-only exception (Ex. MET-PHL-019; Ex. MET-PHL-020); Boston from August 27, Somerville from August 20, Cambridge from September 3, Brookline from August 27 (Ex. MET-BOS-013; Ex. MET-BOS-063; Ex. MET-BOS-036; Ex. MET-BOS-150); Mecklenburg County countywide from August 31 (Ex. MET-CLT-001); King County from September 7 (Ex. MET-SEA-002); Honolulu's Emergency Order 2021-10 of August 23 and Safe Access O'ahu from September 13 (Ex. MET-HNL-033; Ex. MET-HNL-035); Boulder County from September 3 and the Tri-County Health Department from September 1 (Ex. MET-DEN-033; Ex. MET-DEN-082); Denver's vaccination order of August 2 (Ex. MET-DEN-023); Clark County's employee face-covering measure of July 22 (Ex. MET-LAS-006); Salt Lake City from July 28 (Ex. MET-SLC-029); the Maricopa County courts from August 9 (Ex. MET-PHX-016); Pittsburgh's sick-time ordinance of July 27 (Ex. MET-PIT-055); Louisville from August 2 (Ex. MET-SDF-017); Tampa's employee order of September 7 (Ex. MET-TPA-033); Orange County, Florida's emergency of July 28 (Ex. MET-ORL-013); Memphis's Executive Orders 25-2021 and 26-2021 of July 13 and 20 (Ex. MET-BNA-058); Cuyahoga County's building order of August 3 (Ex. MET-CLE-009); Hamilton County's courts from August 11 (Ex. MET-CIN-007); Marion County's courts from August 16 (Ex. MET-IND-054); Columbus from September 14 (Ex. MET-CMH-050).205 Status: each in force from its date through September 30, 2021. Functions: MK (every restaurant, bar, market and institution in the nation's largest markets), PK and FP (every plant, packing house and farm within the county orders, several of which name manufacturing and agricultural workplaces), WF.
B-16. Tribal and territorial orders
The Navajo Nation's Safe Schools Framework bound every school and Head Start from July 8, 2021; its curfew ended August 4; Public Health Emergency Order No. 2021-017 of August 12, 2021 returned businesses and schools to Orange Status and remained in force on September 30, 2021, as its continuation by Public Health Emergency Order No. 2021-020 of October 18, 2021 confirms (Ex. AGY-TRIBAL-021; Ex. AZ-081; Ex. AZ-082; Ex. AGY-TRIBAL-022, a post-period instrument cited only as evidence that the August order had not lapsed).206 The Yakama Nation's Public Safety Order No. 3 of June 26, 2020 required face coverings in every business within the reservation, an airborne-transmission control the Nation directed every business to enforce against unmasked customers, "enforceable by a civil fine of $50 per violation against individuals and $500 per violation against businesses ... regardless of whether the business is licensed by the Yakama Nation or the State of Washington," and remained in force through the quarter in the heart of the Yakima Valley's orchards, hop yards and packing houses (Ex. AGY-TRIBAL-054).207 The Mescalero Apache Tribe's Executive Order 21-05 of August 19, 2021 (effective August 20) required face coverings of every employee and contractor "regardless of vaccination status," an occupational airborne-transmission control on the Tribe's workplaces (Ex. AGY-TRIBAL-040).208 Puerto Rico's OE-2021-064 of August 19, 2021 (effective August 30) extended the vaccination-or-weekly-test requirement to the employees of grocery stores, convenience stores, gyms, salons and child-care centers (Ex. AGY-TERRITORIES-035); Guam's Executive Order 2021-19 of August 20, 2021 imposed vaccination requirements (Ex. AGY-TERRITORIES-110); American Samoa's declarations of ongoing public health emergency kept its border closed to scheduled passenger flights and its entry permits suspended through the quarter (Ex. AGY-TERRITORIES-074, the declaration of June 16, 2021, renewed July 15 and September 11, 2021 by declarations listed on the Governor's site, so that the emergency ran without interruption through September 30, 2021; the declaration of October 8, 2021, Ex. AGY-TERRITORIES-075, post-dates the quarter and is cited only as the renewal that followed).209 Functions: FP and PK (every farm and plant within the reservations and territories), MK, LB.
B-17. The vaccination mandates on the workforce's institutions
California's orders of July 26 and August 5, 2021 (health-care workers vaccinated by September 30) and August 11 (school workers); New York's 10 NYCRR 2.61 (September 27); New Jersey's Executive Order 252 (September 7); Connecticut's Executive Orders 13B, 13D and 13G (September 7 and 27); Illinois's Executive Order 2021-20 (September 5 and 19); North Carolina's Executive Order 224 (September 1); Washington's Proclamations 21-14 and 21-14.1 (October 18); Los Angeles County's order of August 12 (September 30); Denver's order of August 2 (September 30); the Department of Veterans Affairs' mandate of July 26; and State-employee mandates in at least twenty States removed unvaccinated workers from hospitals, schools and child care or placed them on weekly testing, with deadlines inside the quarter (Ex. CA-031; Ex. CA-030; Ex. ECO-B-085; Ex. ECO-B-055; Ex. ECO-B-030; Ex. ECO-B-037; Ex. ECO-B-039; Ex. ECO-B-080; Ex. ECO-B-061; Ex. WA-077; Ex. WA-079; Ex. MET-LA-023; Ex. MET-DEN-023; Ex. ECO-B-089; Ex. ECO-B-108).210 The Federal Reserve's Beige Book of September 8, 2021 recorded "extensive labor shortages that were constraining employment and, in many cases, impeding business activity."211 Functions: WF, CB.
B-18. The Department of Agriculture's finding of August 27, 2021 (Ex. SEC-20-017)
The Farm Service Agency's rule of August 27, 2021, extending CFAP 2 to producers of sales-based commodities and contract producers, found "continuing market disruptions, reduced farm-level prices, and increased production and marketing costs due to COVID-19" as of that date.212 The rule is not itself an order limiting commerce; it is the United States' own finding, inside the quarter, of the condition the orders above produced, and it is cited as such. The Federal Reserve's Beige Books of July 14 and September 8, 2021 and the Census Bureau's Small Business Pulse Survey of July 2021 (supplier delays reported by 64.6 percent of manufacturers) are cited in the same way.213
C. How the instruments reached the functions
FP, farm production and harvest. The 2021 harvest in the three largest labor-housing States ran under standards that regulated the camp and the bus: Cal/OSHA's §§ 3205.3 and 3205.4 in California, OAR 437-004-1115 in Oregon and the readopted housing rules in Washington, each requiring cohorting, spacing, ventilation, isolation space and screening, each reducing the number of workers a camp could house and a vehicle could carry, and each in force on every day of the harvest. Every crew vehicle in the country was under the federal conveyance order. Every farm in New York activated its HERO Act plan from September 6. Every farm within the Yakama and Navajo reservations, within Sacramento, Yolo, Los Angeles and the Bay Area counties, within Columbus, Dane County, Lincoln-Lancaster County and the other municipal orders, and within Nevada, Louisiana, Oregon, New Mexico, Washington, Illinois and Hawaii operated under an indoor face-covering order, an airborne-transmission control on every workplace and public setting, for part or all of the quarter. Michigan's fruit and vegetable growers tested every camp resident under the MDHHS order on July 1.
PK, packing houses and processing plants. Every meat and poultry plant operated under Executive Order 13917's enforced guidance and, from July 7, under a national emphasis program that named its industry by code and directed programmed inspections to it; every plant in California, Oregon, Virginia and New York operated under a State standard requiring written plans, screening, exclusion and, in Oregon from August 13 and California, Washington, Illinois and the covered counties from their dates, face coverings; every plant within a Delta-wave order operated under it; every plant's federal inspectors operated under the reinstated federal face-covering requirement from July 29 and Executive Order 14043 from September 9. The exclusion duties removed every case and close contact from the line for ten to fourteen days at a time, in a quarter in which the Delta variant produced the largest case counts since January.
LB, labor. The entry of persons who had been present in China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa or India remained suspended; the land borders remained limited to essential travel and were renewed three times inside the quarter; the Title 42 order was reassessed and continued inside the quarter; every arrival by air required a negative test; consular services remained post by post; the H-2B cap rule ran to September 30; every crew transport was under the conveyance order; every worker who was a case or a close contact was excluded under a State standard or a county quarantine order.
MK, markets. The food-service channel that had reached full capacity in Minnesota on May 27 and in New York, California, Illinois, Washington and New Mexico only between June 11 and July 1, 2021 was placed under vaccination-proof orders in New York City (August 17), San Francisco (August 20) and New Orleans (August 16), with Los Angeles County and King County issuing theirs inside the quarter (September 17 and 16) for effect on October 7 and October 25, under universal indoor face-covering orders, airborne-transmission controls binding every business, in seven States and the District (Nevada, Louisiana, Oregon, New Mexico, Washington, Illinois and Hawaii, whose statewide requirement never lapsed) and in more than forty counties and cities, with California's orders reaching the unvaccinated indoors and everyone in K-12, health-care and transit settings, and under gathering limits in Hawaii and Savannah; the school channel opened under face-covering and quarantine orders in eighteen States and the District; export markets ran through borders and ports under the instruments in B-9 and B-10; the Department of Agriculture found the market disruption continuing on August 27.
TR, transport and exports. The conveyance order and TSA directives governed every driver at every hub and every port worker; the land borders were limited; the Title 42 order continued; the conveyance order's face-covering requirement reached every cargo handling facility, as the Coast Guard's bulletins record; the Beige Books recorded delivery delays and the White House moved the ports to 24/7 operation in October.
IN, inputs. The scarce-materials designation was extended to November 15; the Beige Books recorded "shortages of materials and labor, delivery delays, and low inventories" and that "many businesses reported having trouble sourcing key inputs"; the Commerce Department solicited data on "the ongoing shortages" on September 24; the supplier plants of Asia closed again under Vietnam's, Malaysia's and Japan's 2021 orders.
HR, OP, WF and CB. The inspectors, consulates, USCIS and Departments of Labor operated under federal workforce protocols; the offices operated under the county and State face-covering orders, airborne-transmission controls on every indoor workplace; the workforce's schools opened under face-covering and quarantine orders and its hospitals, nursing homes, schools and child-care centers under vaccination mandates with deadlines inside the quarter; the customer base operated under the face-covering, vaccination-proof and gathering orders above and the entry and border rules.
D. The continuing-suspension analysis
"During the calendar quarter" modifies "suspended." Congress did not write "orders in effect during the calendar quarter." The clause asks whether the operation was suspended during the quarter because of orders, and a suspension is, by the United States' agreed definition, a "delay" as well as an interruption or termination.214 A delay an order caused continues, because of that order, until what the order compelled the employer to dismantle has been restored, and but-for causation asks only whether the delay would have occurred in the absence of the order. The Notice says the same: an employer suspended "during a portion of a calendar quarter is an eligible employer for the entire calendar quarter," and where an employer "incurs a significant delay ... in moving operations," its operations "may be deemed subject to a partial suspension during that transition period."215
The arithmetic. The orders of 2020 and early 2021 compelled this industry to dismantle four things, and the orders' own phase steps fix how long the restoration took. First, the food-service channel: closed by order in every State but South Dakota between March 15 and April 3, 2020, most by March 24, and by municipal order in South Dakota's cities; reopened at 25 percent in May and June 2020; 50 percent in the summer; closed again in the largest markets from November 2020 to January and February 2021; 25 and 35 percent in New York City from February 12 and 26, 2021; 50 percent from March; full capacity only on May 27 (Minnesota), June 11 (Illinois), June 15 (New York and California), June 30 (Oregon and Washington) and July 1, 2021 (New Mexico).216 A processor whose restaurant and institutional contracts, pack sizes and lines had been converted to retail in April 2020 was, on July 1, 2021, at most three weeks into the first period in which its customers could lawfully buy at full volume, and by August 17 those customers were under vaccination-proof orders in the largest market in the country. Second, the labor camp: Washington's rules cut camp capacity from May 18, 2020 and were never lifted during the period; Oregon's ran from May 11 to October 24, 2020 and again from April 30 to October 24, 2021; California's ran from November 30, 2020 through the period. A grower that housed half its 2019 crew in 2020 because the rule barred the top bunks housed half its crew in the third quarter of 2021 for the same reason. Third, the seasonal workforce: the consulates closed on March 20, 2020, resumed post by post from July 15, 2020 and remained limited through 2021; the H-2B suspension ran to March 31, 2021; the H-2A rules were rewritten three times; a recruitment cycle that begins with a certification application months before the season could not be restored inside a single quarter. Fourth, the line: a plant re-engineered in April and May 2020 for six-foot spacing, barriers, staggered shifts and reduced speed under Executive Order 13917's enforced guidance and its State's standard was, in the third quarter of 2021, still under that order and, in California, Oregon, Virginia and New York, still under the standard; no order permitted the line to return to its 2019 configuration before September 30, 2021. An employer whose operation was ordered suspended through June 30 was not walking normally on July 1.
The four pathways. The finding for the quarter rests on four independent pathways, each sufficient. First, the instruments in force in the quarter that limited the industry's own operations: B-1 through B-8 and B-14 through B-16. Second, the instruments in force in the quarter that limited the industry's counterparties, which the statute reaches in terms and the United States has acknowledged: B-9 through B-13, B-17 and the market orders in B-15. Third, the continuing suspension caused by the orders that had expired, whose compelled dismantling had not been restored on July 1, 2021 under the arithmetic above; this analysis never says an expired order suspended anyone by its own force, it says the suspension the order caused continued because of it. Fourth, the compelled modifications that remained the condition of operating on every day of the quarter under standards still in force (housing capacity, transport cohorts, exclusion of cases and contacts, face coverings, screening, inspection targeting), each a "modification of operations ... considered to be a partial suspension" in the Notice's own words.217
E. The Service's grounds for the quarter, answered
No orders were in effect.
The inventory in subpart B is the answer. Each instrument is a governmental order, regulation or proclamation published by its issuer, in force on some or all of the days between July 1 and September 30, 2021, and reaching a function of this industry. The Service's sentence is a recital about the Service's records; it is not an examination of the public record, and the public record contradicts it.
The orders had lifted; any effect was a lingering effect.
The general capacity limits of most States had lifted by July 1, 2021. The instruments in subpart B had not; most of them were issued or renewed inside the quarter. The continuing-suspension analysis in subpart D rests on the text, on Tri-State's definition and on the orders' own phase steps, and the Chief Counsel memorandum that speaks of "residual delays" "may not be used or cited as precedent" and asks a question the statute does not ask.218
The instruments are guidance.
Executive Order 13917 is an order; the national emphasis program is a directive of the enforcing agency; the Cal/OSHA, Oregon, Washington, Virginia and New York instruments are regulations with citation and penalty provisions; the conveyance order carries criminal penalties; the proclamations, notifications and Title 42 orders are Federal Register instruments; the county orders carry fines, closure and misdemeanor sanctions. The CDC-OSHA guidance of April 26, 2020 is guidance, and this analysis relies on it only as the standard Executive Order 13917 made enforceable.
The employer was essential and remained open.
Every instrument in subpart B was addressed to employers that remained open. The condition of remaining open was compliance with them, and each compelled a delay or interruption of a portion of the operation.
The modifications were nominal.
A housing rule that removes half the bunks, a transport rule that halves the passengers, an exclusion rule that removes every case and close contact for ten to fourteen days in the Delta wave, a national emphasis program that directs inspection to the plant, and a vaccination-proof order on the restaurant that buys the product are each a compelled change in how a function operated. Each is a delay or interruption of a portion of the operation, and "portion" is not "significant."219 The answers section below addresses the remaining grounds.
F. The finding
During the calendar quarter beginning July 1, 2021 and ending September 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely Executive Order 13917 (Ex. SEC-20-001), OSHA's revised National Emphasis Program of July 7, 2021 (Ex. SEC-10-015; Ex. FED-083), the Cal/OSHA standard as readopted June 17, 2021 (Ex. SEC-10-041), Oregon's labor-housing and workplace rules and face-covering orders (Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-053; Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-054; Ex. SEC-10-055; Ex. SEC-10-056; Ex. OR-048), Washington's housing rules as readopted and its face-covering and vaccination orders (Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-064; Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-065; Ex. WA-078; Ex. WA-080; Ex. WA-077), Virginia's permanent standard (Ex. SEC-10-043), New York's HERO Act and its activation (Ex. SEC-10-029; Ex. SEC-10-031), the CDC conveyance order and the TSA security directives (Ex. FED-020; Ex. FED-051; Ex. FED-052), Proclamations 9984, 9992, 10143 and 10199 (Ex. FED-200; Ex. FED-201; Ex. FED-207; Ex. FED-208), the land-border notifications of June 23, July 22, August 23 and September 22, 2021 (Ex. FED-232; Ex. ECO-A-036; Ex. ECO-A-037; Ex. FED-235; Ex. FED-255; Ex. ECO-A-056; Ex. ECO-A-057; Ex. FED-258), the Title 42 order and its reassessment of August 2, 2021 (Ex. FED-037; Ex. FED-038), the pre-departure testing order (Ex. FED-042), the H-2B supplemental-cap rule (Ex. AGY-FED-LABOR-IMMIGRATION-014), the scarce-materials designation as extended July 7, 2021 (Ex. ECO-A-071), the federal workforce and contractor orders (Ex. FED-272; Ex. FED-063; Ex. FED-064), the Delta-wave face-covering, gathering and vaccination orders of Nevada, the District of Columbia, Louisiana, Hawaii, Oregon, New Mexico, Washington, Illinois and California (Ex. NV-041; Ex. DC-057; Ex. LA-036; Ex. HI-024; Ex. HI-025; Ex. OR-048; Ex. NM-067; Ex. WA-078; Ex. IL-042; Ex. CA-029; Ex. CA-035; Ex. CA-030), the school and child-care orders of eighteen States and the District (Ex. ECO-B-051; Ex. ECO-B-029; Ex. ECO-B-036; Ex. ECO-B-054; Ex. ECO-B-066; Ex. ECO-B-087; Ex. CA-034; Ex. WA-075), the county and city orders of the producing regions and the markets (Ex. MET-SAC-015; Ex. MET-LA-018; Ex. MET-SFO-071; Ex. MET-CHI-026; Ex. MET-CHI-041; Ex. MET-NYC-017; Ex. MET-MSY-027; Ex. MET-MSY-029; Ex. MET-STL-021; Ex. MET-KC-002; Ex. MET-CMH-050; Ex. MET-DFW-028; Ex. MET-HOU-038; Ex. MET-SAT-067; Ex. MET-DCM-023; Ex. MET-PHL-019; Ex. MET-BOS-013; Ex. MET-CLT-001; Ex. MET-SEA-002; Ex. MET-HNL-033; Ex. MET-DEN-033; Ex. MET-DEN-082; Ex. MET-MKE-023; Ex. MET-DET-013; Ex. MET-DET-015), the tribal and territorial orders (Ex. AZ-082; Ex. AGY-TRIBAL-054; Ex. AGY-TRIBAL-040; Ex. AGY-TERRITORIES-035; Ex. AGY-TERRITORIES-110), and the vaccination mandates on the workforce's institutions (Ex. CA-030; Ex. ECO-B-055; Ex. ECO-B-030; Ex. ECO-B-080; Ex. WA-077; Ex. MET-LA-023; Ex. MET-DEN-023), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by regulating the labor camp, the crew vehicle, the line and the exposed worker in the principal producing States on every day of the harvest; by holding every meat and poultry plant to an unrevoked Defense Production Act order and a national emphasis program that named its industry; by suspending the entry of persons who had been present in those thirty-three countries, limiting both land borders and conditioning every arrival by air while the consulates remained post by post; by placing every crew transport and every commute under the federal conveyance order's airborne-transmission controls; by conditioning the industry's food-service customers in its largest markets on vaccination proof and universal face-covering requirements within weeks of their first full-capacity operation since March 2020; by opening the workforce's schools under face-covering and quarantine orders and removing unvaccinated workers from its hospitals, schools and child-care centers; and by continuing, because of the orders that compelled it, the dismantling of the industry's food-service channel, labor housing, seasonal recruitment and line configuration that no order permitted to be restored before September 30, 2021.
What this analysis does not claim was in force
The proof for the third quarter of 2021 rests on none of the following, each of which had expired or been rescinded before July 1, 2021 or, where noted, on July 1, 2021: the stay-at-home and business-closure orders of 2020 (Ex. CA-002, rescinded June 15, 2021; Ex. WA-016; Ex. IL-005; Ex. NY-003; Ex. MI-011; Ex. PA-002; Ex. TX-008); the State and local plant-closure demands and requests of April 2020 (Ex. SEC-20-020); Washington's Proclamation 20-57, terminated and rescinded effective July 1, 2021 by Proclamation 20-57.2 (Ex. SEC-20-031; Ex. WA-033; Ex. WA-073); Oregon OSHA's AO 2-2020, expired October 24, 2020 (Ex. SEC-20-036); Oregon's temporary OAR 437-001-0744, replaced by the permanent rule May 4, 2021 (Ex. SEC-10-054); Michigan's Executive Orders 2020-114 and 2020-145, void from October 2, 2020 (Ex. SEC-20-045; Ex. SEC-20-043), and the MDHHS gatherings and face mask orders, rescinded effective June 22, 2021 (Ex. MI-076); MIOSHA's emergency rules, rescinded June 22, 2021 (Ex. SEC-10-024); North Carolina's Executive Order 147 rules, lifted May 14, 2021 (Ex. SEC-20-044; Ex. NC-029); New Jersey's Executive Order 122 and the general requirements of Executive Order 192, lifted May 28 and June 4, 2021 (Ex. SEC-10-020; Ex. SEC-10-021), the residual EO 192 requirements being relied on through Executive Orders 242 and 243 (Ex. NJ-050; Ex. NJ-051); the CDC's eviction order of August 3, 2021 after its vacatur on August 26, 2021 (Ex. FED-026), relied on for August 3 to 26 only; Kentucky's Healthy at Work requirements, rescinded June 11, 2021 (Ex. SEC-10-051; Ex. KY-049); Minnesota's Executive Orders 20-40 and 20-56 and its peacetime emergency, ended July 1, 2021 (Ex. SEC-10-044; Ex. SEC-10-045; Ex. MN-041); Virginia's emergency temporary standard, replaced January 27, 2021 by the permanent standard that is relied on (Ex. SEC-10-042); Proclamations 10014, 10052 and 10131, revoked February 24 and expired March 31, 2021 (Ex. SEC-20-009; Ex. SEC-20-010; Ex. SEC-20-011); the Department of Homeland Security's H-2A filing windows, the last of which closed June 16, 2021 (Ex. SEC-20-005; Ex. SEC-20-006; Ex. SEC-20-007), relied on only as to workers admitted under them; the Department of State's blanket suspension of March 20, 2020, replaced by post-by-post resumption from July 15, 2020 (Ex. SEC-20-012); the FFCRA leave mandates, expired December 31, 2020 (Ex. FED-170); California's Executive Order N-51-20 and its codification, expired December 31, 2020 (Ex. SEC-20-040); the FEMA export-allocation rule, expired June 30, 2021 (Ex. ECO-A-067); the TSA directive SD 1582/84-21-01, superseded May 12, 2021 (Ex. ECO-B-005); Washington's Proclamation 20-46, rescinded June 28, 2021; the winter closure orders of 2020-21 in every State; and the general capacity and gathering limits of every State, which ended on the dates stated in the fifty-State table, the last on July 1, 2021 (Ex. TX-029; Ex. IL-037; Ex. CA-027; Ex. NY-054; Ex. NY-057; Ex. MI-076; Ex. OR-043; Ex. WA-065; Ex. MN-041; Ex. NM-060). The finding stands on the instruments in subpart B and on the continuing suspension the expired orders caused, stated as such. The MDHHS agricultural and food-processing testing order (Ex. MI-042; Ex. MI-075; Ex. MI-078) is relied on for July 1, 2021, the one day of the quarter on which it was in force, and for no later day.
The quarter the Service's letters most often dispute. The record shows these instruments in force on this industry's functions between July 1 and September 30, 2021; an order in force on any day of the quarter is an order in force during it, and the State, metropolitan and federal layers on the quarter page add to the list.