Logistics, Warehousing and Wholesale

The Six Quarters

In each of the six calendar quarters from the second quarter of 2020 through the third quarter of 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, and in each quarter they caused a temporary delay, interruption or termination of a more than nominal portion of the operations of this industry. This section states the orders quarter by quarter, with the third quarter of 2021 at length.

The second quarter of 2020

Between April 1 and June 30, 2020, the industry's customers were closed by order in every State, its own docks and floors ran under mandatory conditions, five lines of wholesale trade were closed by name in Pennsylvania and every non-essential wholesale workplace in New York, its drivers ran through checkpoints and quarantine lines, its motor-vehicle offices were shut, and its borders were limited to essential travel. The wages of March 13 through March 31, 2020 fall in this quarter's proof.⁷²

The first day

On April 1, 2020 stay-at-home orders were in force in every State but eight and in the District of Columbia, and sector-closure orders in those eight; Pennsylvania's list had closed furniture, lumber and construction-materials, apparel, miscellaneous nondurable and electronic-market wholesalers since March 19; New York's Executive Orders 202.6 and 202.8 had cut every non-essential workplace, wholesale trade included, to zero in-person staff since 8:00 p.m. March 22; New Jersey's Executive Order 107 had closed non-essential retail and directed every business to telework "wherever practicable" since March 21; Texas GA-12 had quarantined every roadway arrival from Louisiana since March 30 with Department of Public Safety enforcement; Florida's checkpoints had operated on Interstates 10 and 95 since March 27; Vermont, Alaska, Hawaii, Oklahoma, Rhode Island, South Carolina, West Virginia and Kentucky had their own quarantine orders; the land borders had been limited to essential travel since March 21; motor-vehicle offices were closed in Indiana, Wisconsin, California, New Jersey, Tennessee, South Carolina, Louisiana, Alabama, Pennsylvania and nearly every other State; and FMCSA's emergency declaration recited the national emergency in every commercial motor vehicle operation.⁷³

The industry's own floors

On April 10, 2020 New Jersey's Executive Order 122 took effect, commanding every "warehousing business" by name to bar non-essential visitors, cap meetings under ten, keep six feet, stagger starts, stops and breaks, restrict common areas, and furnish and require cloth face coverings and gloves at the employer's expense; the same order halted non-essential construction in the State until May 18, 2020.⁷⁴ New York's Executive Order 202.16 required, as an airborne-transmission control on every essential workplace, a face covering of every essential employee in direct contact with the public from April 15, 2020; Pennsylvania's Worker Safety Order imposed cleaning, distancing, masking and screening duties on every life-sustaining business from April 19, 2020; Ohio's Stay Safe Ohio Order made the "Manufacturing, Distribution & Construction" sheet mandatory from May 4, 2020 ("Ensure minimum 6 ft between people, if not possible, install barriers"; "Face coverings must be worn at all times"; "Establish maximum capacity (e.g. 50% of fire code)"); Minnesota's Executive Orders 20-40 and 20-56 required a written COVID-19 Preparedness Plan of every business before its workers returned; Massachusetts' Order No. 31 imposed an airborne-transmission control, a face covering wherever six feet could not be kept, from May 6, and its Mandatory Workplace Safety Standards governed every reopened workplace from May 18, 2020; Kentucky's Healthy at Work Minimum Requirements governed every reopened business from May 9 and its Manufacturing, Distribution and Supply Chain requirements from May 11; Illinois' Executive Order 2020-32 imposed distancing, masking and capacity duties on every "Essential Business and Operation" from May 1; and Washington's Department of Labor and Industries adopted WAC 296-800-14035 on May 26, 2020, making every Governor's proclamation a workplace safety rule enforceable by citation.⁷⁵ New York reopened wholesale trade region by region from May 15, 2020 and in New York City from June 8, only under the mandatory Interim Guidance: fifty percent occupancy, six feet "at all times," face coverings whenever the distance closed, and an affirmation by each "Responsible Party" that it had read and would comply.⁷⁶ Los Angeles County compelled every business designated essential to adopt and post a written Social Distancing Protocol by April 15, 2020 and to supply and require face coverings of employees and customers; Oakland and Wayne Counties, Michigan, imposed daily screening, seven- to fourteen-day exclusions and distancing plans on every business still open from March 25 and 26, 2020; the Bay Area's seven health officers ordered every business designated essential to "prepare, post, and implement a Social Distancing Protocol at each of their facilities" from March 31, 2020; San Diego County required a posted Social Distancing and Sanitation Protocol of every open business on pain of immediate closure from April 9, 2020; King County required daily employee screening of every open retailer from March 16, 2020; Denver ordered every non-essential facility to "cease all activities ... except Minimum Basic Operations" from March 24, 2020; Atlanta, Fulton County and DeKalb County ordered the same in the same week.⁷⁷

The customers

Every dine-in room in the country was closed or confined to takeout by order between March 15 and April 3, 2020, the great majority by March 24, in every State but South Dakota, where the Governor's directives of March 23, 2020 (Ex. SD-005) were made mandatory on every employer by Executive Order 2020-12 on April 6, 2020 (Ex. SD-009); the closures remained in force to the end of April in most States and to mid-May or June in the largest; non-essential retail was closed from March 19 to April 3 in every stay-at-home State and reopened for curbside pickup only in May; non-essential construction was halted in Pennsylvania (March 19 to May 1), New York (March 27 to June 8), New Jersey (April 10 to May 18), Michigan (March 24 to May 7), Washington (March 25 to April 24), Boston (March 17 to May), Cambridge, Somerville, Nantucket and the Bay Area (March 31 to May 3); non-essential manufacturing was closed in Michigan (March 24 to May 11), Pennsylvania (March 19 to May 8), New York, New Jersey, Minnesota and Washington; personal-care establishments were closed in every State from March 19-24 to May or June; and hospitals and nursing homes barred visitors, screened every entrant and, in Minneapolis, operated under a misdemeanor-backed municipal order that suspended communal dining and screened every person at the door.⁷⁸ Each of those orders closed a dock the industry delivered to, and each is an order limiting the industry's commerce.

The routes

The traveler-quarantine layer ran through the quarter: Florida's Executive Orders 20-82 and 20-86 to August 5, 2020; Texas GA-12 to May 21, 2020; Alaska's Health Mandate 010 with its filed-plan alternative; Vermont's Addendum 7 and Maine's Executive Order 34, with lodging closed except for enumerated purposes; Hawaii's fourteen-day quarantine of every trans-Pacific arrival from March 26, 2020 and its interisland quarantine from April 1; Rhode Island's stops of New York-plated vehicles; Oklahoma's quarantine of air arrivals; Kauai's Rule 5 and Honolulu's stay-at-home order on the routes to the islands' ports.⁷⁹ Pennsylvania's Turnpike plazas ran with restrooms and take-out only; every truck-stop restaurant in the country was closed to dine-in service; New Jersey's Motor Vehicle Commission inspection facilities were closed.⁸⁰ Transit agencies cut service and made face coverings, an airborne-transmission control on every commute, a condition of riding: King County Metro from May 18, the MBTA from May 6, LA Metro from May 11, Bi-State Metro Transit from May 11, Jefferson Transit from May 15, RTD's operators from April 24 and Valley Metro's riders from July 1, 2020.⁸¹

The credentials

Motor-vehicle agencies closed their offices in nearly every State between March 16 and March 27, 2020, under the States' emergency orders, as their notices record: Indiana's branches from March 24 "until at least April 7"; Wisconsin's every center from March 20 with skills tests cancelled; California's field offices from March 27, reopening twenty-five offices on May 8 and the rest on June 11; New Jersey's agencies, road tests and inspections from March 16 to July 7; Tennessee's driver services centers to limited services with skills tests suspended to May 18; South Carolina's county offices; Louisiana's every OMV location; Alabama's driver license offices "Until Further Notice."⁸² Commercial driver license skills tests stopped with them, and FMCSA's own record states that COVID-19 "impacted SDLAs and their operating statuses."⁸³ Drug-testing collection sites closed or limited hours from April 4, 2020, as the Department of Transportation's enforcement statement of that date records.⁸⁴

The borders and inputs

The land-border limitation to essential travel was renewed effective April 21 and May 21, 2020 (by the notices published April 22 and May 22) (Ex. FED-217, Ex. FED-218; Ex. FED-240, Ex. FED-241), and again effective June 23 by the notices of June 24, 2020 (Ex. FED-219, Ex. FED-242); every non-essential crossing was prohibited and every essential crossing was documented.⁸⁵ The Coast Guard's bulletins of the quarter, cited as the regulator's record of the maritime regime and not as orders, identified the exempted maritime workforce on March 27, stated the Captains of the Port's vessel and facility conditions under MSIB 07-20 and restated the mariner drug-testing requirements under MSIB 10-20; the President's Defense Production Act orders of March 18, 23 and 27 and the scarce-materials designation of March 25 governed every distributor and importer of protective equipment; FEMA detained exports from April 7; and Michigan's, Ohio's and Indiana's plant closures and the foreign decrees closed the plants from which the industry's tractors, trailers, tires and parts came.⁸⁶

The last day

On June 30, 2020 New Jersey's Executive Order 122 rules, New York's Interim Guidance for Wholesale Trade, Ohio's sector sheet, Minnesota's preparedness plans, Pennsylvania's Worker Safety Order, Massachusetts' workplace standards, Washington's WAC 296-800-14035 and Safe Start Phase 2 caps, New York's Executive Order 205 (issued June 24, effective June 25), the land-border notice of June 24, the FMCSA extension of June 15, the maritime conditions the Coast Guard's bulletins record, the county and city face-covering orders of Maricopa County, Tucson, Mesa and Los Angeles County (airborne-transmission controls on every indoor business), Minneapolis' Emergency Regulation 2020-12 and Saint Paul's Executive Order 2020-9 on every licensed business, and the Bay Area's and San Diego's protocol regimes were in force; every State's reopening order capped the industry's customers at twenty-five to fifty percent; Boston remained in Phase II; Cambridge and Somerville kept construction under control plans; and the industry's drivers and dock employees worked under statewide face-covering orders, airborne-transmission controls on the workplace, in at least seventeen States and the District.⁸⁷

During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, the operation of the trade or business of employers in this industry was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the stay-at-home orders of every State but eight and the District and the closure orders of every State, which closed the industry's customers and named its permitted operations, Pennsylvania's closure of five wholesale lines, New York's closure and conditioned reopening of wholesale trade, the workplace orders of New Jersey, New York, Ohio, Minnesota, Pennsylvania, Massachusetts, Kentucky, Illinois and Washington and of Los Angeles, the Bay Area, San Diego, Detroit, Seattle, Denver and Atlanta, the traveler-quarantine and checkpoint orders of Texas, Florida, Alaska, Vermont, Maine, Hawaii, Rhode Island and Oklahoma, the closure of the motor-vehicle offices under the States' emergency orders, the Captains of the Port's orders and maritime regulations the Coast Guard's bulletins implemented, the Defense Production Act orders and the land-border limitation, each of which caused a temporary delay, interruption or termination of a more than nominal portion of the industry's operations.

The third quarter of 2020

Between July 1 and September 30, 2020, the reopening orders governed every dock the industry delivered to by percentage and protocol, the workplace orders governed the industry's own floors, the interstate quarantine regimes of New York, Connecticut, Massachusetts, Chicago and Pennsylvania's neighbors governed its drivers, the State face-covering orders placed an airborne-transmission control on every terminal employee, and the border and entry orders ran on every day.

The customers and the floors

The reopening steps of June and July 2020 set the industry's receivers at twenty-five, fifty or seventy-five percent of capacity under sector protocols that each State made mandatory; the July 13, 2020 California order closed bars and indoor dining, wineries, theaters and entertainment statewide and, in the counties on the State's Monitoring List (about thirty, holding most of the State's population), indoor gyms, personal care, malls, indoor worship and offices for non-critical sectors, and Los Angeles County, San Diego County and the Bay Area carried the closures into county law; Honolulu re-closed bars on August 8, prohibited social gatherings on August 20 and ordered every non-essential facility on Oahu closed for a second time from August 27 to September 23, 2020; Minneapolis ordered every bar area in the city closed from August 1; St. Louis cut bars, restaurants and venues to fifty percent with an 11:00 p.m. close from August 13; and Illinois placed the Metro East under its first resurgence mitigations from August 18, 2020.⁸⁸ On the industry's own floors, Virginia's occupational standard 16VAC25-220 took effect July 27, 2020, the first in the nation, imposing exposure assessment, screening, distancing, sanitation and reporting duties on every employer in the Commonwealth; New Jersey's Executive Order 122 rules, New York's wholesale guidance, Ohio's sheet, Minnesota's plans, Pennsylvania's Worker Safety Order and Massachusetts' standards ran throughout; and the State face-covering orders, airborne-transmission controls on every indoor workplace, reached every dock, yard and terminal employee: Pennsylvania from July 1, Texas from July 3, Kentucky from July 10, Louisiana from July 13, Montana from July 15, Minnesota from July 25, Wisconsin from August 1, New Mexico, Nevada, Michigan, California, Oregon and North Carolina from the spring and June, Indiana from July 27 and West Virginia from July 7.⁸⁹

The routes

New York's Executive Order 205 required a fourteen-day quarantine of every traveler from a State above the positivity threshold from June 25, 2020, with the Commissioner of Health's essential-worker protocols governing the drivers who crossed; Connecticut's Executive Order 7III (July 21, 2020) exempted critical-infrastructure workers only "when such travel is related to their work in Connecticut" and imposed fines on the rest; Massachusetts Order No. 45 governed every arrival from August 1, 2020; Chicago's Emergency Travel Order governed from July 6, 2020; Hawaii's trans-Pacific and interisland quarantines ran throughout; Alaska's Health Mandate 010 ran with its testing alternative.⁹⁰ The land borders were renewed to essential travel effective July 22 and August 21, 2020 by the notices of July 22 and August 21 (Ex. FED-220, Ex. FED-221; Ex. FED-243, Ex. FED-244), and again effective September 22 by the notices of September 23 (Ex. FED-222, Ex. FED-245).⁹¹ Every truck-stop restaurant in California, Los Angeles County, the Bay Area, San Diego and Honolulu was re-closed to indoor service in July; every truck-stop restaurant in the country was under a capacity cap and a face-covering rule, the exposure controls the reopening orders attached to every dining room.

The credentials and inputs

The motor-vehicle offices reopened by appointment through the summer; New Jersey extended every commercial license and permit due through December 31, 2020 because its agencies could not process them.⁹² FMCSA extended its emergency declaration on August 15, 2020; the Coast Guard's bulletins recorded the continuing maritime conditions; the FAA's second cargo-in-cabin exemption issued July 10, 2020; the Defense Production Act orders, the scarce-materials designation (extended July 30, 2020) and the FEMA export rule (extended August 10, 2020) ran throughout.⁹³

The last day

On September 30, 2020 the following were in force: California's Blueprint for a Safer Economy order of August 28, 2020, which replaced the July 13 order on August 31 and kept indoor dining, bars and indoor personal care closed in every Purple-tier county, with the San Diego and Los Angeles County implementing orders; St. Louis Health Commissioner's Order No. 13 (Ex. MET-STL-014), as extended; the Region 4 Tier 2 mitigations of September 2, 2020 (Ex. MET-STL-033, as escalated); Minneapolis Emergency Regulation 2020-17 (Ex. MET-MSP-013); Honolulu's Tier 1 order of September 23, 2020 (Ex. MET-HNL-021), which replaced the second stay-at-home order (Ex. MET-HNL-019) on September 24 and capped retail at fifty percent and gatherings at five; Virginia's 16VAC25-220 (Ex. SEC-10-042); the New Jersey, New York, Ohio, Minnesota, Pennsylvania and Massachusetts workplace orders; the State face-covering orders named above; New York's Executive Order 205, Connecticut's 7III, Massachusetts Order 45, Chicago's Emergency Travel Order and the Hawaii and Alaska quarantines; the land-border notices of September 23, 2020 (Ex. FED-222, Ex. FED-245); and the maritime, Defense Production Act and drug-testing orders.⁹⁴

During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, the operation of this industry was partially suspended due to the capacity, protocol and re-closure orders on its customers, the workplace orders on its floors, the State face-covering orders (airborne-transmission controls on the workplace) on its employees, the quarantine orders on its routes, the motor-vehicle office closures and collection-site limitations on its hiring, and the border and Defense Production Act orders and the maritime conditions of the Captains of the Port on its inputs, each an order from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19.

The fourth quarter of 2020

Between October 1 and December 31, 2020, the winter re-tightening re-closed or re-capped the industry's customers in California, Illinois, Michigan, Minnesota, Pennsylvania, Washington, New Mexico, Oregon, Nevada and the largest metros; the State occupational-safety agencies of Michigan, Oregon and California wrote their COVID-19 rules into every workplace; New Jersey's Executive Order 192 re-imposed mandatory protocols on every business; Pennsylvania's test-or-quarantine order governed every arriving driver; and the border, entry and Title 42 orders ran on every day.

The workplace orders

Michigan's MIOSHA emergency rules took effect October 14, 2020, requiring of every employer a written preparedness plan, daily screening, masks, distancing and a policy "prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely"; Wayne County made them a county health order on October 16 and Detroit's Chief Public Health Officer issued a twenty-five-page order on October 9 that fixed screening, barriers and shift rules for every plant, warehouse and construction site in the city.⁹⁵ New Jersey's Executive Order 192 took effect November 5, 2020, imposing on every business open to the public or to employees mandatory distancing, masking, screening, sanitation and notification duties enforceable by the Department of Labor.⁹⁶ Oregon OSHA's temporary rule took effect November 16, 2020; California's Cal/OSHA emergency standard, 8 C.C.R. § 3205, took effect November 30, 2020, requiring of every employer a written COVID-19 Prevention Program, exclusion of exposed employees with pay, testing and reporting.⁹⁷ Virginia's standard ran throughout, and New Mexico's occupational-safety bureau re-issued its four-hour case-reporting rule on December 3, 2020.⁹⁸

The customers

Illinois entered Tier 3 statewide on November 20, 2020 (no indoor dining; retail at twenty-five percent; remote office work where possible); Michigan's health department closed indoor dining, entertainment and in-person high-school and college instruction from November 18; Minnesota's Executive Order 20-99 closed on-premises food and beverage service, gyms and venues from November 20; Washington's Proclamation 20-25.8 closed indoor dining, gyms and indoor entertainment from 12:01 a.m. November 17 (restaurants and bars from November 18) and capped retail at twenty-five percent; Pennsylvania closed indoor dining and gyms and cut retail from December 12 and ordered every business to operate remotely "unless impossible" from November 27; New Mexico reset to its most restrictive tier on November 16; Oregon froze on November 18; Nevada's Directive 035 paused the State from November 24; California's Regional Stay at Home Order of December 3, 2020 closed four of the State's five regions as their ICU capacity fell below fifteen percent (Southern California and the San Joaquin Valley from 11:59 p.m. December 6, Greater Sacramento from December 10, the Bay Area from December 17; retail at twenty percent, offices remote, gatherings prohibited), to January 25, 2021 (Ex. CA-021); Los Angeles County suspended outdoor dining from November 25 and issued its Targeted Safer at Home orders of November 30 and December 30; San Diego County made the Regional order operative on December 6; San Francisco and Contra Costa implemented it on December 6; St. Louis County ordered residents to remain in their residences, closed indoor dining and capped every business at twenty-five percent from November 17; Denver imposed a nightly "Home by 10" from November 8 and Level Red from November 20; Boston, Cambridge, Somerville and Brockton rolled back to Phase II Step 2 in December; New Orleans returned to Modified Phase Two on November 25 and closed bars indoors on December 31.⁹⁹ Each of those orders closed or capped the docks the industry delivered to during the retail peak.

The routes and borders

Pennsylvania's travel order took effect November 20, 2020, requiring a negative test or a fourteen-day quarantine of every arrival with an exception only for travel "for the purposes of work"; New York's Executive Order 205.2 (October 31, 2020) added a test-out; Connecticut's 9B and 9C added a form and fines; Chicago's order ran; the land-border notices of September 23, October 22, November 23 and December 22 (Ex. FED-222 to Ex. FED-225; Ex. FED-245 to Ex. FED-248) kept the borders at essential travel; the CDC's Title 42 order of October 13, 2020 governed the land ports of entry.¹⁰⁰ Metro Transit in the Twin Cities capped riders at ten per forty-foot bus; the MBTA enforced its face-covering rule, an airborne-transmission control on every commute, from November 6; RTD kept its rider caps; Denver's, Detroit's and Seattle's transit rules ran.¹⁰¹

The credentials and inputs

California's DMV suspended behind-the-wheel tests again from December 14, 2020 to January 11, 2021; New Jersey's credential extensions ran to December 31; FMCSA extended its declaration on December 1, 2020; the Coast Guard announced the extension of mariner credentials to October 31, 2021 (MSIB 08-20, Change 5, December 22, 2020); the DOT drug-testing statement was updated December 1, 2020; the FEMA export rule was extended December 31, 2020; the Federal Aviation Administration's cargo-in-cabin exemption ran.¹⁰²

During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, the operation of this industry was partially suspended due to the winter re-tightening orders on its customers in at least ten States and the largest metros, the occupational-safety rules of Michigan, Oregon, California, Virginia and New Mexico and New Jersey's Executive Order 192 on its own floors, the travel orders of Pennsylvania, New York, Connecticut, Massachusetts and Chicago on its drivers, the transit orders on its workforce, the motor-vehicle office limitations on its hiring, and the border, Title 42 and Defense Production Act orders and the Captains of the Port's maritime conditions on its inputs, each an order from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19.

The first quarter of 2021

Between January 1 and March 31, 2021, the winter orders ran through their stepped expiry, the federal conveyance order made an airborne-transmission control, a mask on every person, the law at every port, port of entry, rail yard and multi-occupant cab on February 1, the Coast Guard's bulletins implemented it on every vessel and at every sea port and the Federal Railroad Administration carried it onto every freight rail operation, and the workplace standards of California, Virginia, Michigan, Oregon, Washington and New Mexico governed the industry's floors.

The federal orders

The CDC's order of January 29, 2021 took effect at 11:59 p.m. on February 1: every person "must wear a mask while at any transportation hub," a term defined to include every "seaport or other port" and "U.S. port of entry"; every operator "must require all persons onboard to wear masks"; and a commercial motor vehicle was excepted only "if the driver is the sole occupant of the vehicle."¹⁰³ The Coast Guard's MSIB 02-21, the bulletin by which the Captains of the Port implemented the order and cited here as evidence of that implementation, applied it to every commercial vessel from February 1 and, by Change 1 of March 22, to every sea port; the FRA's Emergency Order No. 32 of February 26 required the same control, a mask, in "all freight rail operations"; the TSA's Security Directive 1582/84-21-01 bound every surface operator.¹⁰⁴ Proclamation 10143 (January 25, 2021) continued the entry suspensions and added South Africa; the CDC's pre-departure testing order governed every arriving air passenger from January 26; the land-border notices of January 19, February 23 and March 19, 2021 (Ex. FED-227, Ex. FED-228, Ex. FED-229; Ex. FED-250, Ex. FED-251, Ex. FED-252) kept the borders at essential travel; the Title 42 order ran; FMCSA extended its declaration again in February 2021 (posture only); OSHA issued its National Emphasis Program on March 12, 2021.¹⁰⁵

The States

California's Regional Stay at Home Order lifted January 25, 2021, returning every county to the Purple tier's caps; Illinois' Tier 3 lifted region by region through January and February; Michigan's health department reopened indoor dining at twenty-five percent from February 1; Minnesota's caps stepped up from January 11; Pennsylvania's telework mandate ran to April 4, 2021 and its travel order to March 1; New York's Executive Order 205 ran to April 1; Connecticut's 7III and 9S ran to March 19; Massachusetts Order 45 ran to March 22; Texas GA-34 lifted every statewide cap and face-covering mandate effective March 10, 2021 and barred local mandates; Virginia's permanent standard took effect January 27, 2021; Cal/OSHA's, Oregon's, Michigan's and Washington's rules ran throughout; Washington's regions re-entered Phase 2 on February 1 and Phase 3 on March 22.¹⁰⁶ The metros ran their own: Los Angeles County's Targeted Safer at Home order to January 29; San Diego's Regional order to January 25 and its 10:00 p.m. closure by county order thereafter; St. Louis County's Safer At Home orders at twenty-five and fifty percent; Boston's and Cambridge's modified phases; Denver's Level Orange; New Orleans' Modified Phases One and Two and its closure of every bar for Carnival week; Detroit's, Oakland County's and Wayne County's orders of October 2020 "until further order."¹⁰⁷

During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, the operation of this industry was partially suspended due to the winter orders on its customers through their expiry, the federal conveyance order at every port, port of entry, rail yard and multi-occupant cab from February 1, as implemented at every sea port and on every vessel through the Coast Guard's bulletins, the rail order, the entry, testing, border and Title 42 orders, the workplace standards of six States and the metro orders on its floors and drivers, and the traveler-quarantine orders of New York, Connecticut, Massachusetts, Pennsylvania and Chicago on its routes, each an order from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19.

The second quarter of 2021

Between April 1 and June 30, 2021, the State capacity and protocol orders ran to their stepped expiry between April 4 and June 30, and on every day of the quarter the federal conveyance, maritime, rail, border and entry orders, the workplace standards and the metro orders were in force.

The expiry steps

Pennsylvania's telework mandate ended April 4 and its mitigation orders May 31, 2021, its face-covering order June 28; New York's EO 205 ended for domestic travel April 1; Colorado handed the dial to its counties April 16, and Denver, the Tri-County Health Department, Jefferson County and Boulder County kept capacity restrictions in force to May 15-16 under dial orders that ran to August 15 (Tri-County), August 16 (Boulder County) and, as amended August 13, September 15, 2021 (Jefferson County), with Denver's adoption orders of the amended State order running to October 1, 2021 (Ex. MET-DEN-014, Ex. MET-DEN-079, Ex. MET-DEN-030, Ex. MET-DEN-096, Ex. MET-DEN-106, Ex. MET-DEN-103, Ex. MET-DEN-021, Ex. MET-DEN-022, Ex. MET-DEN-026); Massachusetts rescinded its capacity orders May 29 and ended its emergency June 15; New Jersey's Executive Order 243 (May 26, 2021) rescinded the telework mandate effective June 4 and, with Executive Order 242 (May 24, 2021), relieved vaccinated employees of Executive Order 192's mask and distancing rules while keeping them, and the daily health checks, for unvaccinated or unverified employees (Ex. NJ-050 ¶¶ 2-3; Ex. SEC-10-022 ¶¶ 1-4); Ohio rescinded its orders June 2; California's Blueprint ended June 15 and Cal/OSHA readopted its standard June 17; New York made its industry guidance optional June 15 and rescinded the Executive Order 202 series June 24-25; Michigan rescinded its MIOSHA rules June 22; Minnesota's caps ended May 28 and its emergency July 1; Washington's and Oregon's capacity orders ended June 30; Hawaii's did not end at all.¹⁰⁸ The metros stepped down on their own dates: Cambridge May 6 and May 29; Somerville May 29; St. Louis City and County May 3 and May 13-14; Los Angeles County June 15; Clark County June 1; San Diego June 15 by a Limited Order that expressly kept its isolation and quarantine orders in force; and on July 1, 2021, the first day of the following quarter, Minneapolis extended its emergency to September 30 "to provide a planned, phased elimination of its Emergency Regulations" (Ex. MET-MSP-018).¹⁰⁹

The federal orders

Proclamation 10199 suspended entry from India from May 4; the TSA's Security Directive 1582/84-21-01A, announced April 30, took effect May 12 and ran to September 13; the Transportation Security Oversight Board ratified the directives April 20; the Coast Guard's bulletins recorded TWIC enforcement discretion from April 21 and the vessel-reporting requirement as updated May 5, and on June 11 re-issued the Captains of the Port's implementation of the conveyance order (Change 2); the land-border notices of April 22, May 24 and June 23 (Ex. FED-230, Ex. FED-231, Ex. FED-232; Ex. FED-253, Ex. FED-254, Ex. FED-255) kept the borders at essential travel; FMCSA extended its declaration May 26, 2021 through August 31; OSHA's Healthcare ETS took effect June 21 at every hospital and nursing-home dock the industry served; the DOT held air carriers to their service obligations through September 30 and updated its drug-testing statement May 27, 2021 through December 31.¹¹⁰

During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, the operation of this industry was partially suspended due to the State and metro capacity and protocol orders in force to their expiry, the federal conveyance, rail, border, entry and Title 42 orders in force throughout (the conveyance order implemented at every sea port through the Coast Guard's bulletins), the workplace standards of California, Virginia, Michigan, Oregon, Washington and New Mexico, New Jersey's Executive Order 192 throughout, as carried for unvaccinated or unverified employees by Executive Orders 242 and 243 from June 4, and the metro quarantine, isolation and emergency orders, each an order from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19.

The third quarter of 2021

Between July 1 and September 30, 2021, the operation of the trucking, logistics, warehousing, wholesale and distribution industry was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19. Orders in force on every day of the quarter governed every port, port of entry, rail yard and multi-occupant cab in the country, every land crossing with Canada and Mexico, every hospital and nursing-home dock, every federal facility the industry delivered to, and every workplace in California, Virginia, Washington, Oregon and New Mexico; orders issued inside the quarter reinstated universal indoor face coverings, workplace infection-prevention and exposure-control requirements on every worker, in seven States and the District of Columbia and in the freight hubs of Los Angeles, the Inland Empire, the Bay Area, Sacramento, Las Vegas, Seattle, Denver, Chicago, Detroit, the Twin Cities, Madison, St. Louis, Kansas City, Columbus, Cleveland, Louisville, Memphis, Atlanta, Charlotte, New Orleans, Dallas, San Antonio, Philadelphia, Baltimore, Boston and Honolulu, activated New York's exposure-prevention plans in every private workplace, and named general warehousing a target of federal inspection. This section is written to be read alone.

A. The Service's premise about the quarter and what the statute asks

The Service's form letter states:

"[O]ur records indicate there were no government orders related to COVID-19 in effect during the quarter(s) you claimed ERC which could have fully or partially suspended your trade or business."¹¹¹

Section 3134(c)(2)(A)(ii)(I) asks 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)."¹¹² Congress enacted that clause for this quarter on March 11, 2021, five weeks after the conveyance order made a mask, an airborne-transmission control, federal law at every port and port of entry and a year after the land borders were limited to essential travel, and on November 15, 2021 it terminated the following quarter and left this one in place.¹¹³ The Notice's own words, which Notice 2021-49 extends to this quarter, confirm the result: a modification required by order that "has more than a nominal effect on the business operations under the facts and circumstances" is a partial suspension, "requiring employees and customers to wear face coverings" is such a modification, an employer that "reduces its operating hours due to a governmental order is considered to have partially suspended its operations," and an employer suspended "during a portion of a calendar quarter is an eligible employer for the entire calendar quarter."¹¹⁴

B. The instruments in force from July 1 through September 30, 2021

B-1. The federal conveyance order and its directives

Exhibits: Ex. FED-020; Ex. FED-051; Ex. FED-052; Ex. FED-056.

Issuer: the Centers for Disease Control and Prevention under 42 U.S.C. § 264; the Transportation Security Administration under 49 U.S.C. § 114(l)(2). Dates: order effective 11:59 p.m. February 1, 2021, "until further notice"; Security Directive 1582/84-21-01A (announced April 30, 2021; effective May 12, 2021; expiration September 13, 2021) and -01B (announced August 20, 2021; effective September 14, 2021; expiration January 18, 2022), each directive's face carrying its effective and expiration dates and no issue date; the aviation directives ratified April 20, 2021. Character: an airborne-transmission control on every conveyance and transportation hub, with a duty on every operator to require compliance. Operative clause: "Persons must wear masks over the mouth and nose when traveling on conveyances into and within the United States"; "A person must also wear a mask while at any transportation hub"; "Transportation hub means any airport, bus terminal, marina, seaport or other port, subway station, terminal (including any fixed facility at which passengers are picked-up or discharged), train station, U.S. port of entry, or any other location that provides transportation"; the exception for "Commercial motor vehicles or trucks ... if the driver is the sole occupant of the vehicle or truck." Enforcement: federal law; the order recites the criminal penalties of 42 U.S.C. § 271 and 18 U.S.C. § 3559 for violation. Status: in force July 1 and September 30, 2021. Functions: PT (every port gate, chassis pool, rail ramp and air-cargo terminal), DR (every team operation, every driver-trainer pairing and every cab with a passenger), WF (every employee who commuted by bus, rail or ferry), CS (every port of entry).¹¹⁵

B-2. The conveyance order at the ports and on the vessels, as the Coast Guard's bulletins implemented it

Exhibits: Ex. FED-020 (the order); Ex. AGY-USCG-PORTS-037; Ex. AGY-USCG-PORTS-038 (the bulletins, cited as context).

Issuer: the Centers for Disease Control and Prevention (the order); the Coast Guard's Captains of the Port and District Commanders, who hold order authority over every vessel and waterfront facility under 46 U.S.C. §§ 70002, 70011 and 70051 and 33 C.F.R. § 160.111 and who implemented the order through Marine Safety Information Bulletins. The bulletins are informational instruments without independent legal effect; this analysis cites them as evidence of the operating regime the order and the Captains of the Port's authority created, and never as orders. Dates: MSIB 02-21, Change 2 (June 11, 2021) to September 2, 2021; Change 3 (September 2, 2021) beyond September 30, 2021; MSIB 02-20, Change 7 (May 5, 2021), the current vessel-reporting bulletin at the quarter's end, restating the hazardous-condition reporting duty of 33 C.F.R. § 160.216; MSIB 13-20, Change 3 (April 21, 2021), TWIC enforcement discretion to January 1, 2022; MSIB 08-20, Change 5, credential extensions to October 31, 2021; MSIB 04-21, crew-change conditions, not cancelled in the period. Operative text, as the bulletins state the regime: the conveyance order's airborne-transmission control, a mask on every person indoors on every commercial vessel and at every sea port, enforceable through Captain of the Port orders for non-compliance; hazardous-condition reporting of illness aboard; crew-change conditions. Status: the order in force July 1 and September 30; the bulletins current on both days. Functions: PT, DR (drayage and port drivers), CS (every marine terminal receiver), HR (credentialed mariners and TWIC holders).¹¹⁶

B-3. The Federal Railroad Administration's Emergency Order No. 32

Exhibits: Ex. AGY-AVIATION-SURFACE-014.

Issuer: the Federal Railroad Administrator under 49 U.S.C. § 20104. Dates: issued February 26, 2021, published March 1, 2021; in force through September 30, 2021 and until the CDC order was vacated in April 2022; the June 10, 2021 statement of enforcement discretion reached outdoor areas only and left the indoor and on-train requirements unchanged. Operative text: the same airborne-transmission control as the conveyance order, a mask on every person, required in "all freight rail operations" and in every railroad facility. Enforcement: civil penalties under 49 U.S.C. § 21301. Status: in force July 1 and September 30. Functions: PT (every intermodal ramp and rail-served warehouse), DR (every intermodal drayage move).¹¹⁷

B-4. The land-border, entry, Title 42 and pre-departure orders

Exhibits: Ex. FED-232; Ex. FED-233; Ex. FED-234; Ex. FED-235; Ex. FED-255; Ex. FED-256; Ex. FED-257; Ex. FED-258; Ex. FED-207; Ex. FED-208; Ex. FED-037; Ex. FED-038; Ex. FED-042.

Issuers: the Secretary of Homeland Security under 19 U.S.C. § 1318(b); the President under 8 U.S.C. § 1182(f); the CDC under 42 U.S.C. §§ 264 and 265. Dates: the Canadian and Mexican land-border notices of June 23 (in effect to 11:59 p.m. July 21), July 22 (to August 21), August 23 (to September 21) and September 22, 2021 (to October 21), with the October 21, 2021 notices admitting vaccinated non-essential travelers only from November 8, 2021; Proclamations 10143 and 10199 in force until Proclamation 10294 revoked them effective November 8, 2021; the Title 42 order of October 13, 2020 to August 1 and its reassessment order of August 2, 2021 thereafter; the pre-departure testing order throughout. Operative text: land-border travel "limited to 'essential travel'"; non-essential travel defined by example as "sightseeing, recreation, gambling, or attending cultural events"; "truck drivers supporting the movement of cargo" admitted as a category of essential travel; entry of noncitizens present in the named countries "hereby suspended"; no aircraft passenger introduced without a negative test. Status: in force July 1 and September 30. Functions: DR and PT (every cross-border lane; Laredo, El Paso, Pharr, Otay Mesa, Nogales, Detroit-Windsor, Blue Water, Buffalo-Niagara, Blaine, Sweetgrass, Pembina, Portal, Highgate Springs and Derby Line), CS and CB (every Canadian and Mexican shipper and receiver and every domestic customer of imported goods), HR (every foreign-national driver and mechanic).¹¹⁸

B-5. The OSHA emphasis program and the Healthcare ETS

Exhibits: Ex. FED-083; Ex. FED-080; Ex. FED-082.

Issuer: the Occupational Safety and Health Administration under 29 U.S.C. §§ 655 and 657. Dates: DIR 2021-01 of March 12, 2021 to July 7, 2021; DIR 2021-03 from July 7, 2021, "effective for no more than 12 months"; the Healthcare ETS, 29 C.F.R. § 1910.502, from June 21, 2021 (compliance July 6 and 21) to December 27, 2021. Operative text: the revised program's Appendix A lists "493110 General Warehousing and Storage" among the industries targeted for programmed inspection; the ETS requires of every employer in a setting "where any employee provides healthcare services or healthcare support services" entry screening, distancing, barriers, ventilation, daily employee screening and paid medical removal. Enforcement: programmed inspections and citations; civil penalties. Status: in force July 1 and September 30. Functions: WH (every general warehouse on the inspection list), CS (every hospital, clinic and nursing-home dock, where the receiving facility's ETS duties governed the delivering driver's entry).¹¹⁹

B-6. The federal contractor, Defense Production Act, transportation and licensing orders

Exhibits: Ex. FED-272; Ex. FED-278; Ex. FED-063; Ex. FED-064; Ex. FED-016; Ex. ECO-A-071; Ex. AGY-AVIATION-SURFACE-035; Ex. AGY-AVIATION-SURFACE-021; Ex. AGY-AVIATION-SURFACE-022; and, cited as the agencies' records and not as orders, Ex. AGY-AVIATION-SURFACE-046, Ex. AGY-ST-DMV-SOS-RECORDERS-017 and Ex. SEC-11-062.

The Safer Federal Workforce Task Force's Model Safety Principles of July 29, 2021 imposed workplace infection-prevention and exposure-control requirements on every federal facility: masks of every person regardless of vaccination status in areas of substantial or high transmission, an attestation of vaccination status from every employee and onsite contractor, and disclosure by every visitor; the Certification of Vaccination form issued August 6, 2021; Executive Orders 14042 and 14043 of September 9, 2021 directed every agency to place the Task Force clause in covered contracts entered into, extended, renewed or optioned on or after October 15, 2021 and required the federal workforce's vaccination; the September 9 issuance and its commands to the agencies are relied on for the quarter (Ex. FED-063, Ex. FED-064). Every delivery into a federal facility ran under those rules. The Secretary of Health and Human Services renewed the public health emergency on July 19, 2021 and extended the scarce-materials designation on July 7, 2021 to November 15, 2021. The Department of Transportation's Order 2021-4-13 held air carriers to their service obligations through September 30, 2021; the FAA extended the cargo-in-passenger-cabin exemptions to December 31, 2021 on July 9, 2021; the drug-and-alcohol testing enforcement statement ran "through December 31, 2021." California's DMV announced on September 2, 2021 that every commercial driver license, permit and endorsement expiring between March 2020 and November 30, 2021 was extended through November 30, 2021 because its offices had not been able to renew them (a release cited as the agency's record of its action, not as an order). FMCSA's declaration ran through August 31, 2021 and was extended that day through November 30, 2021 (posture only). Status: in force in the quarter. Functions: CS and DR (federal deliveries), HR (licensing and testing), PT (air cargo).¹²⁰

B-7. The State occupational-safety standards and workplace orders

Exhibits: Ex. SEC-11-027; Ex. SEC-02-047; Ex. SEC-10-043; Ex. WA-072; Ex. WA-101; Ex. AGY-ST-LABOR-WORKPLACE-054; Ex. AGY-ST-LABOR-WORKPLACE-055; Ex. AGY-ST-LABOR-WORKPLACE-056; Ex. AGY-ST-LABOR-WORKPLACE-061; Ex. SEC-09-014; Ex. AGY-ST-LABOR-WORKPLACE-021; Ex. AGY-ST-LABOR-WORKPLACE-027; Ex. NJ-050; Ex. SEC-10-022.

Issuers: the Occupational Safety and Health Standards Board of California; the Virginia Safety and Health Codes Board; the Washington Department of Labor and Industries and the Governor of Washington; Oregon OSHA; the New Mexico Environment Department's Occupational Health and Safety Bureau; the Governors of New Jersey and Georgia. Dates and text: California's 8 C.C.R. §§ 3205-3205.4, adopted November 19, 2020, approved and effective November 30, 2020, and readopted June 17, 2021 (Ex. SEC-02-047), applied "to all employees and places of employment" with narrow exceptions and required a written COVID-19 Prevention Program, exclusion of exposed employees, testing and reporting in every warehouse, terminal, shop and cab in the State; Virginia's 16VAC25-220, permanent from January 27, 2021 and amended September 8, 2021 (Ex. SEC-10-043), required exposure assessment, screening, distancing, sanitation and reporting of every employer in the Commonwealth and was revoked only March 23, 2022 (the emergency text is Ex. SEC-10-042); Washington's Proclamation 20-25.14, Washington Ready (July 1, 2021) (Ex. WA-072), and the Washington Ready plan (Ex. WA-101) kept workplace exposure-control requirements in force, face coverings for the unvaccinated and in listed settings and a duty on every employer to verify vaccination status before permitting unmasked work, a workplace duty made enforceable by citation by the Department of Labor and Industries' readoption of WAC 296-800-14035 on July 6, 2021 (Ex. AGY-ST-LABOR-WORKPLACE-054) and again on August 23 and September 20, 2021, and the Department adopted WAC 296-62-600 on August 10, 2021 requiring notice and reporting of every outbreak; Oregon OSHA's permanent rule OAR 437-001-0744 (May 4, 2021) (Ex. SEC-09-014; the temporary rule it replaced is Ex. SEC-09-013) ran throughout and AO 12-2021 of September 14, 2021 added medical-removal benefits and mask enforcement; New Mexico's 11.5.1.16 NMAC required a report of every positive case within four hours; New Jersey's Executive Order 192 worksite requirements for unvaccinated or unverified employees and its daily health checks, carried by Executive Order 242 ¶¶ 2-3 and Executive Order 243 ¶¶ 1-4 (Ex. NJ-050, Ex. SEC-10-022), bound every in-person worksite in the State, Port Newark-Elizabeth's warehouses included, on July 1 and on September 30, 2021; and Georgia's Executive Order 08.19.21.03 imposed from August 19, 2021 a mandatory mitigation duty on every Organization operating in person. Enforcement: citations and civil penalties under each State's occupational-safety act; the New Jersey Department of Labor's enforcement of Executive Order 192. Status: in force July 1 and September 30. Functions: WH, MT, OP, DR, HR, PT (Port Newark-Elizabeth), CS (Georgia).¹²¹

B-8. New York's HERO Act plans

Exhibits: Ex. SEC-11-031; Ex. SEC-10-029; Ex. SEC-10-028; Ex. SEC-10-031; Ex. SEC-09-041.

Issuer: the New York Legislature (chapter 105 of the Laws of 2021, May 5, 2021, adding Labor Law § 218-b) (Ex. SEC-10-029) and the Commissioners of Labor and Health. Dates: the Commissioner of Labor's Airborne Infectious Disease Exposure Prevention Standard and model plans issued July 6, 2021 (Ex. SEC-10-028); every private employer in the State was required to adopt a plan within thirty days of the standard, that is, by August 5, 2021; the Commissioner of Health designated COVID-19 a highly contagious communicable disease on September 6, 2021, activating every plan (Ex. SEC-10-031), and continued the designation on September 30, 2021 (Ex. SEC-09-041) (the emergency regulation of August 5, 2021 is 12 NYCRR Part 840). Operative text: every employer "shall establish an airborne infectious disease exposure prevention plan" meeting standards for "employee health screenings; face coverings; ... personal protective equipment ... at the expense of the employer; accessible workplace hand hygiene stations; ... regular cleaning and disinfecting of shared equipment and frequently touched surfaces; ... effective social distancing"; civil penalties of "not less than fifty dollars per day for failure to adopt" a plan and "not less than one thousand dollars nor more than ten thousand dollars for failure to abide by an adopted" plan, rising to "twenty thousand dollars" for a repeat violation. Status: the plan requirement in force from August 5; the activated plan in force from September 6 through September 30 and beyond. Functions: WH, MT, OP (every New York warehouse, terminal, shop and dispatch office), PT (the Port of New York and New Jersey's New York terminals and JFK cargo).¹²²

B-8, continued. New York's Department of Health rules

Exhibits: Ex. NY-071; Ex. NY-073; Ex. NY-072.

Issuer: the Commissioner of Health and the Public Health and Health Planning Council. Dates and text: 10 NYCRR Subpart 66-3, as readopted June 23, 2021, imposed an airborne-transmission control on every business from July 1 to August 27, 2021, requiring it to provide face coverings at its own expense and to require them of every unvaccinated employee and customer; 10 NYCRR 2.60, adopted in the emergency filing of August 26, 2021 (Ex. NY-071), and the Commissioner's Determination on Indoor Masking of August 27, 2021 (Ex. NY-073) carried the masking control into every Article 28, 36 and 40 setting, a condition at every health-care receiver's door with a penalty of $1,000 per violation per day; 10 NYCRR 2.61 (Ex. NY-071), filed and effective August 26, 2021, required a first dose of every health-care worker in general hospitals and nursing homes by September 27, 2021; 10 NYCRR 2.62 (Ex. NY-072), filed and effective September 2, 2021, tested unvaccinated school staff weekly. Status: Subpart 66-3 in force July 1 to August 27; sections 2.60, 2.61 and 2.62 in force on September 30. Functions: WH, MT, OP (Subpart 66-3), CS (sections 2.60 and 2.61), WF (section 2.62).¹²³

B-9. The State face-covering orders, as workplace infection-prevention and exposure-control requirements

Exhibits: Ex. NV-041; Ex. OR-048; Ex. WA-078; Ex. DC-057; Ex. CT-049.

Each instrument in this item imposed an occupational-health and airborne-transmission control on every indoor workplace within the issuer's jurisdiction, the warehouse floor, the maintenance shop, the wholesale counter and the dispatch office included; where the instrument imposed a companion control (distancing, verification of vaccination status, a duty on the business to furnish or enforce), it is stated, and where it required face coverings alone the sentence says so. Louisiana's Proclamation 137 JBE 2021 (August 2, 2021; effective August 4) required a face covering of every person indoors in every business and workplace open to the public and in every school, renewed by 167 JBE 2021 (August 31) and 181 JBE 2021 (September 28); Nevada's Directive 047 (July 27, 2021; effective July 30) required masks indoors of every person in every county of substantial or high transmission, which included Clark and Washoe Counties throughout, and Directive 048 (August 4) added schools; Oregon's OAR 333-019-1025 (filed August 11, 2021; effective August 13) required a mask, face covering or face shield of every individual, regardless of vaccination status, in every indoor space, workplaces included, subject to the exemptions the rule enumerated, with a civil penalty of $500 a day; Washington's Secretary of Health Order 20-03.4 (August 19-20, 2021; effective August 23) required masks indoors of every person regardless of vaccination status, Proclamation 20-25.15 (August 20) carried it into the Governor's proclamation, and Order 20-03.5 (September 13) extended it to outdoor events of 500 or more; Illinois' Executive Order 2021-20 (August 26, 2021; effective August 30) required masks in every indoor public place and workplace, restated by Executive Order 2021-22 (September 3); New Mexico's Public Health Emergency Order of August 17, 2021 (with directive from August 20) required face coverings in every indoor public space; Hawaii's face-covering requirement ran on every day under the Twenty-First Proclamation (June 7, 2021), the Emergency Proclamation of August 5 and Executive Order 21-05 (August 10); the District's Mayor's Order 2021-097 (July 29, 2021; effective July 31) required masks indoors of every person over two; Connecticut's Executive Orders 13 (July 19) and 13A (August 5) authorized and then required masks of the unvaccinated indoors; California's State Public Health Officer Order of June 11, 2021 required masks of the unvaccinated indoors and universal masking on transit and in K-12 settings. Each of these bound the warehouse floor, the maintenance shop, the wholesale counter and the dispatch office as a workplace; the control was the employer's to implement, at its own expense where the instrument so provided, on every worker and every entering driver. Status: each in force on September 30, 2021. Functions: WH, MT, OP, DR, CS.¹²⁴

B-10. The health-care-worker and State-workforce vaccination orders and the school orders

Exhibits: Ex. CA-030; Ex. OR-046; Ex. WA-077; Ex. NJ-056; Ex. MA-067; Ex. MA-069; Ex. CT-051; Ex. ECO-B-056; Ex. DC-075; Ex. NC-058; Ex. VA-045; Ex. MD-077; Ex. MA-068; Ex. MN-044; Ex. IL-040; Ex. KY-052; Ex. NJ-055; Ex. PA-042; Ex. OR-045; Ex. NV-042; Ex. HI-025; Ex. HI-043; Ex. CA-034; Ex. CT-050; Ex. MA-071; Ex. RI-055; Ex. WA-075; Ex. AGY-ST-EDUCATION-HIGHER-ED-029; Ex. IN-071; Ex. DC-057; Ex. TN-036; Ex. MT-042; Ex. NC-032.

California's order of August 5, 2021 required every health-care worker to be fully vaccinated by September 30, 2021; Oregon's OAR 333-019-1010 (August 5), Washington's Proclamation 21-14 (August 9), New Jersey's Executive Order 252 (August 6), Massachusetts' Public Health Emergency Order No. 2021-4 (August 4) and 105 CMR 159.000 (September 8), Illinois' Executive Order 2021-22 (September 3), Connecticut's Executive Order 13B (August 6), Maine's 10-144 C.M.R. ch. 264 (August 12) and Maryland's MDH Order 2021-08-18-01 (August 18) (Ex. ECO-B-056) imposed vaccination or vaccination-or-testing conditions on health-care workforces, and the District announced its health-care-worker requirement, with a first-dose deadline of September 30, on August 16, 2021; North Carolina's Executive Orders 224 and 229 (July 29 and August 31), Virginia's Executive Directive Eighteen (August 5), Maryland's State-employee protocols (August 5), Massachusetts' Executive Order 595 (August 19) and Minnesota's policy of August 11 imposed the same conditions on State workforces. Every one of those health-care facilities was a receiver whose dock the industry's drivers entered, and the facility's order fixed the conditions of entry. The school orders of Illinois (August 4), Kentucky (August 10 and 12), New Jersey (August 6), Pennsylvania (August 31, effective September 7), Oregon (August 2), Nevada (August 4), Hawaii (August 10, with the Department of Education's requirements of July 30), California (June 11, with the K-12 guidance of July 12), Connecticut (August 5), Louisiana (August 4), New Mexico (August 17), Massachusetts (August 25), Rhode Island (August 19), Washington (July 30), Virginia (August 12), Indiana (September 2, fixing the quarantine rules) and the District (July 31) required masks of every student and staff member and quarantined exposed children, reaching the workforce's households in the industry's hourly, non-teleworkable jobs. Tennessee's Executive Order 84 (Ex. TN-036) and Montana's emergency rule of August 31, 2021 (Ex. MT-042) dictated the rules the workforce's schools operated under by requiring parental opt-outs from district mask mandates (Tennessee's enjoined in Shelby, Williamson and Franklin, Ex. TN-067, Ex. TN-086, restoring universal masking there), and North Carolina's S.L. 2021-130 § 10 (Ex. NC-032) required every board to adopt and revisit a face-covering policy monthly; each is an order on the school as counterparty. Status: in force in the quarter. Functions: CS, CB, WF.¹²⁵

B-11. The State emergencies and the preemption instruments

Exhibits: Ex. CA-001; Ex. CA-027; Ex. WA-072; Ex. OR-043; Ex. IL-039; Ex. LA-034; Ex. LA-035; Ex. LA-037; Ex. NM-058; Ex. NM-061; Ex. TX-038; Ex. CT-048; Ex. RI-048; Ex. CO-043; Ex. IN-067; Ex. IA-039; Ex. ID-047; Ex. DE-041; Ex. MD-071; Ex. NJ-052; Ex. GA-041; Ex. KY-001; Ex. TN-033; Ex. TN-034; Ex. TN-035; Ex. MO-020; Ex. MS-077; Ex. MS-055; Ex. AR-017; Ex. AL-052; Ex. WV-001; Ex. NY-070; Ex. DC-021; Ex. TX-037; Ex. TX-032; Ex. FL-063; Ex. AZ-045; Ex. SC-045.

The disaster and public-health emergencies of at least twenty-five States and the District were in force on July 1, 2021 (California (the Proclamation of a State of Emergency of March 4, 2020, Ex. CA-001, in force through the quarter; Executive Order N-07-21 of June 11, 2021, Ex. CA-027, issued under it, rescinded the stay-at-home framework effective June 15, 2021 and left the emergency in place), Washington, Oregon, Illinois, Louisiana, New Mexico, Nevada, Hawaii, Texas, Connecticut, Rhode Island, Colorado, Indiana, Iowa, Idaho, Delaware, Maryland, New Jersey, Georgia, Kentucky (Executive Order 2020-215 of March 6, 2020, Ex. KY-001, continued under 2021 Special Session House Joint Resolution 1 § 2(1); Executive Order 2021-386 of June 11, 2021, issued under it, rescinded the Healthy at Home and Healthy at Work orders and retained the state of emergency), Tennessee (Executive Order 81, Ex. TN-033), Missouri, Alabama (to July 6), Mississippi (the Proclamation of March 14, 2020, extended September 10, 2021; the extension and the November 20, 2021 expiry are reported in Ex. MS-077 and Ex. MS-055, secondary press reports), West Virginia (the Proclamation of a State of Emergency of March 16, 2020, in force through the quarter (Ex. WV-001); Executive Order 23-21 (July 20, 2021) (Ex. WV-067), which ended the vehicle-inspection deadline suspension of Executive Order 7-20 § 14 effective October 1, 2021, presupposes it) and the District), and at least twenty-five on September 30 (Maryland's ended August 15 and Arkansas's September 27; Arkansas re-declared July 29 (Ex. AR-017), Alabama August 13 (Ex. AL-052) and New York September 27 (Ex. NY-070)); Nebraska's ended June 30 (Ex. NE-067) and Vermont's June 15, 2021, and neither is claimed. Each emergency is the predicate under which the State's health officers, occupational-safety agencies and local governments acted, and each is relied on as such. Texas's GA-38 (July 29, 2021), GA-39 (August 25) and Senate Bill 968 (June 16), Florida's Executive Order 21-175 (July 30), Arizona's Executive Order 2021-18 (August 16), Georgia's Executive Order 08.19.21.03 (August 19) and South Carolina's Proviso 1.108 (June 30) each dictated what rules the industry's employers in those States would operate under by barring or preempting local mandates; they are governmental orders limiting the commerce of the localities and businesses they addressed, and in Texas the county orders they met were litigated through the quarter and remained posted and applied. Georgia's Executive Order 08.19.21.03 also re-imposed a mandatory mitigation duty on every Organization operating in person from August 19, 2021, and from that date made local face-covering orders unenforceable against private businesses. Status: in force in the quarter. Functions: all.¹²⁶

B-12. The metro orders in the freight hubs

Each face-covering order in this item was an occupational-health and airborne-transmission control imposed on every indoor workplace within the issuer's jurisdiction, the warehouse floor, the maintenance shop and the dispatch office included, and several carried companion controls (screening of personnel, verification of vaccination status, isolation and quarantine of exposed workers, license penalties on the business) that are stated where the instrument imposed them. Los Angeles County reinstated universal indoor face coverings "regardless of vaccination status" in "all indoor public settings and businesses" from 11:59 p.m. July 17, 2021, required documentation of every health-care worker's vaccination by September 30, and required masks at mega events from August 19; the City of Los Angeles and Long Beach did the same July 17 (Ex. MET-LA-018, Ex. MET-LA-019, Ex. MET-LA-023, Ex. MET-LA-035, Ex. MET-LA-045). The seven Bay Area health officers and Berkeley ordered every person, "regardless of vaccination status, to wear face coverings when indoors in public settings" from 12:01 a.m. August 3, 2021, and made "businesses ... required to implement the indoor face covering order"; San Francisco's C19-07y required every business to screen personnel from June 15 and, from August 20, proof of vaccination at indoor restaurants, bars and gyms; BART kept masks under the federal order (Ex. MET-SFO-071, Ex. MET-SFO-010, Ex. MET-SFO-049, Ex. MET-SFO-008, Ex. MET-SFO-011, Ex. MET-SFO-070). Sacramento County required masks indoors of every person from July 30, 2021, with employer enforcement (Ex. MET-SAC-015). San Bernardino County's order of June 15, 2021 kept licensed entities under State facility letters and criminal penalties; Riverside County's critical-infrastructure-worker protocol confined exposed workers for ten days; the Riverside Superior Court required masks in every courthouse (Ex. MET-RIV-031, Ex. MET-RIV-017, Ex. MET-RIV-037). San Diego County's Limited Order of June 15, 2021 kept its Isolation Order and its Quarantine Order (revised July 22, 2021) in force throughout the quarter, removing every case and every unvaccinated close contact from every workplace in the county for ten to fourteen days (Ex. MET-SAN-022, Ex. MET-SAN-023, Ex. MET-SAN-024). Clark County's Board of Commissioners ordered, at its emergency meeting of July 20, 2021, that every employee of every business in an indoor public space countywide, in the incorporated cities and the unincorporated county, wear a face covering from midnight July 22, 2021, under Clark County Code 3.04.065's license-suspension and $1,000-a-day penalties (Ex. MET-LAS-006 (meeting notice and action; secondary); Ex. MET-LAS-026 (the ordinance)), and the Eighth Judicial District Court ordered masks of every person in every court facility from July 19 (Ex. MET-LAS-019). King County's Local Health Officer ordered masks in every indoor public space and at every outdoor event of 500 or more from September 7, 2021 and issued the vaccination-verification order of September 16; Seattle extended its civil emergency orders to January 15, 2022 on September 21 (Ex. MET-SEA-002, Ex. MET-SEA-001, Ex. MET-SEA-019). Denver ordered the personnel of the City, hospitals, care facilities, schools, shelters and first-responder entities and their contractors fully vaccinated by September 30, 2021; Boulder County required masks in every indoor public space from September 3; the Tri-County Health Department's universal school order ran from September 1; the county dial orders ran to August 15 (Tri-County), August 16 (Boulder County) and September 15 (Jefferson County) (Ex. MET-DEN-023, Ex. MET-DEN-033, Ex. MET-DEN-082, Ex. MET-DEN-079, Ex. MET-DEN-030, Ex. MET-DEN-103). Maricopa County's Superior Court ordered every person entering any court facility to wear a face covering from August 9 and Valley Metro kept its rider rule (Ex. MET-PHX-016, Ex. MET-PHX-042). Chicago's Public Health Order 2021-1 required masks indoors from August 20; its Phase 5 order, its liquor-hours order and its travel advisory ran throughout; Metra and the CTA kept the federal rule and reduced schedules (Ex. MET-CHI-026, Ex. MET-CHI-018, Ex. MET-CHI-010, Ex. MET-CHI-032, Ex. MET-CHI-051). Oakland County and Wayne County, Michigan, ordered masks of every person in every school and day care from August 24 and 27; SMART's Safety Playbook of August 6 required face coverings of every employee and rider (Ex. MET-DET-013, Ex. MET-DET-015, Ex. MET-DET-039). Minneapolis extended its emergency through September 30 and then to November 7, 2021, adopting a City-employee testing and vaccination regulation; Saint Paul required masks at every City-controlled property from August 3 (Ex. MET-MSP-018, Ex. MET-MSP-019, Ex. MET-MSP-041). Dane County ordered every person masked "In any enclosed space open to the public" from August 19 and again from September 10; Milwaukee County Transit kept the federal rule (Ex. MET-MKE-023, Ex. MET-MKE-024, Ex. MET-MKE-044). The City of St. Louis ordered masks of every person indoors from July 26; the County's parallel order was enjoined August 3 and remained posted; Bi-State Metro Transit kept masks under the TSA directive (Ex. MET-STL-021, Ex. MET-STL-069, Ex. MET-STL-043). Kansas City's Ordinance 210694 (August 19) and 210853 (September 23), Jackson County's order of August 6 and Johnson County's Board of Health Order 001-21 (August 5) required masks indoors on both sides of the State line (Ex. MET-KC-002, Ex. MET-KC-003, Ex. MET-KC-006, Ex. MET-KC-045, Ex. MET-KC-067). Columbus's Executive Order 2021-01 (September 10) and Ordinance 2388-2021 (effective September 14) required face coverings in "every place of business" and in "manufacturing, construction and agricultural workplaces where distancing is difficult"; Cuyahoga County's Executive Order EO2021-0016 (August 3) and the Common Pleas Court's rules of August 5, and the Hamilton County courts' order of August 11, governed Ohio's other hubs (Ex. MET-CMH-048, Ex. MET-CMH-050, Ex. MET-CLE-009, Ex. MET-CLE-025, Ex. MET-CIN-007). Marion County's courts ordered masks from August 16 (Ex. MET-IND-054). Louisville required face coverings in every Metro building and vehicle from August 2 (Ex. MET-SDF-017) and declared a red alert with worksite requirements September 14 (Ex. MET-SDF-041, a status release graded secondary and cited as the City's record of those requirements). Memphis's Executive Orders 25-2021 and 26-2021 (July 13 and 20) and the Shelby County health orders governed the FedEx hub (Ex. MET-BNA-058, Ex. MET-BNA-059). Atlanta's Executive Order of July 28, 2021 required masks in every public place (Ex. MET-ATL-063, secondary) until Executive Order 08.19.21.03 barred its enforcement against private businesses from August 19, and Savannah's Emergency Order No. 29 (August 24) closed City buildings and revoked event permits through September 30 (Ex. MET-ATL-017). Mecklenburg County's Board of Health Rule of August 18, 2021 ordered every business in Charlotte and its towns to require face coverings from August 31, on pain of misdemeanor and "shutting down a facility's operations" (Ex. MET-CLT-001). New Orleans ordered masks of every person indoors from July 31, proof of vaccination or a negative test at every restaurant, bar, gym and venue from August 16, and vaccination or testing of every City contractor's public-facing employee from August 30; Jefferson Parish ordered masks indoors "in any place outside of a private residence" from August 4; the RTA and Jefferson Transit kept the federal rule (Ex. MET-MSY-027, Ex. MET-MSY-029, Ex. MET-MSY-063, Ex. MET-MSY-037, Ex. MET-MSY-066). Harris County's building screening and mask orders of May 25 and August 17, its school order of August 12 and its courthouse orders of August 11 and 17 governed the Port of Houston's county (Ex. MET-HOU-037, Ex. MET-HOU-038, Ex. MET-HOU-039). Dallas County ordered universal indoor masking of every commercial entity, school, child-care center and college from 11:59 p.m. August 11, 2021, re-issued August 12 and modified August 16 "continuing until rescinded," litigated to a stay, a temporary injunction and an affirmance; Bexar County's NW-21 (August 10-11) did the same in San Antonio; DART, Trinity Metro and the TRE kept the federal rule (Ex. MET-DFW-028, Ex. MET-DFW-031, Ex. MET-DFW-094, Ex. MET-SAT-067). Orange County, Florida, declared its emergency July 28 (Ex. MET-ORL-013), and the Ninth Judicial Circuit's Amended Temporary Order Governing Trial Court Proceedings (AO 2020-06-09, June 17, 2021) (Ex. MET-ORL-044), in force on July 1, 2021 and barring every exposed or quarantined person from its courthouses, was superseded in the quarter by successor orders, the last of which, AO 2020-06-12, limited public access to every court facility and reinstated masks in every courthouse from August 23, 2021 (Ex. MET-ORL-047; the access limitation and the face-covering requirement are recited in AO 2020-06-13 (Oct. 8, 2021) (Ex. MET-ORL-059) and AO 2020-06-14 (Oct. 25, 2021) (Ex. MET-ORL-045), which ended them October 18 and November 1, 2021); Hillsborough County and Tampa kept their emergencies and Tampa imposed a vaccination-or-testing directive on its workforce September 7 (Ex. MET-TPA-015, Ex. MET-TPA-031, Ex. MET-TPA-033). Baltimore City reinstated indoor face coverings by an order dated and effective August 10, 2021 (Ex. MET-BAL-017; rescinded effective 6:00 a.m. March 1, 2022 by Ex. MET-BAL-018), and the Maryland Transit Administration kept masks and reduced schedules (Ex. MET-BAL-107). Montgomery County, Maryland's Board of Health regulation required masks indoors from August 7 (Ex. MET-DCM-023), and Prince George's County's Executive Orders 18-2021 and 19-2021 (August 5, 2021) imposed vaccination-or-testing requirements on county employees, volunteers and contractors, as recited in Executive Order 22-2021 (October 4, 2021) (Ex. MET-DCM-047). Philadelphia's Full Reopening Order as amended August 11 and 13, 2021 required masks in every indoor business that did not verify vaccination; Pittsburgh's courts required masks from August 10 and kept remote technology to October 1 (Ex. MET-PHL-018, Ex. MET-PHL-019, Ex. MET-PHL-020, Ex. MET-PIT-036, Ex. MET-PIT-040). New York City's emergency ran on every day, and its Key to NYC order conditioned entry to every indoor restaurant, gym and venue on proof of vaccination from August 17 with penalties from September 13; the MTA's $50 mask fine ran throughout (Ex. MET-NYC-014, Ex. MET-NYC-015, Ex. MET-NYC-017, Ex. MET-NYC-018, Ex. MET-NYC-021, Ex. MET-NYC-046). Boston's Public Health Commission ordered masks indoors in every business from 8:00 a.m. August 27, "until rescinded," Somerville from August 20 and Cambridge from September 3; the MBTA kept masks under the federal order (Ex. MET-BOS-013, Ex. MET-BOS-063, Ex. MET-BOS-036, Ex. MET-BOS-095). Honolulu ran under Tier 5 from July 8, cut back on August 23, imposed Safe Access Oahu from September 13 and the Safe Oahu Response Plan from September 22 (Ex. MET-HNL-032, Ex. MET-HNL-035, Ex. MET-HNL-037). Salt Lake City required masks in City buildings and vehicles from May 10, 2021 (Ex. MET-SLC-031, Ex. MET-SLC-032, secondary) and of every employee and visitor regardless of vaccination status from July 28 by Executive Order No. 3 of 2021 (Ex. MET-SLC-029). Status: each in force on the dates stated, and the July 17 to September 3 orders on September 30, save Atlanta's from August 19 and St. Louis County's from August 3 as stated. Functions: WH, MT, OP, DR, CS, PT, WF.¹²⁷

B-13. The court and transit orders

The Supreme Court of Texas renewed its emergency orders on July 19, 2021; the courts of Maricopa County, Clark County, Hamilton County, Marion County, Allegheny County, Riverside County, Harris County and Orange County, Florida, required face coverings, screening or remote appearances through the quarter, exposure controls on every filing and hearing; and the federal conveyance order governed every transit commute on the MTA, CTA and Metra, DART and Trinity Metro, the MTA of Maryland, Milwaukee County Transit, Bi-State Metro Transit, the RTA and Jefferson Transit, the MBTA, BART, RTD, Valley Metro and SMART (Ex. TX-040, Ex. TX-041, Ex. MET-PHX-016, Ex. MET-LAS-019, Ex. MET-CIN-007, Ex. MET-IND-054, Ex. MET-PIT-036, Ex. MET-RIV-037, Ex. MET-ORL-044 (AO 2020-06-09, in force July 1; masks reinstated in every court facility from Aug. 23, 2021 by AO 2020-06-12, Ex. MET-ORL-047); Ex. MET-NYC-046, Ex. MET-CHI-051, Ex. MET-DFW-094, Ex. MET-BAL-107, Ex. MET-MKE-044, Ex. MET-STL-043, Ex. MET-MSY-037, Ex. MET-MSY-066, Ex. MET-BOS-095, Ex. MET-SFO-070, Ex. MET-DEN-046, Ex. MET-PHX-042, Ex. MET-DET-039). Functions: OP (every filing, hearing and permit matter), WF (every commuting worker).¹²⁸

B-14. The quarantine and isolation orders

San Diego County's Isolation Order (December 24, 2020) and Quarantine Order (April 5, 2021; revised July 22, 2021), Riverside County's critical-infrastructure-worker protocol, Los Angeles County's quarantine and isolation orders as revised August 26, 2021, Dane County's continued isolation and quarantine requirements and the State frameworks of Washington, Oregon, New Mexico and Illinois removed every diagnosed worker and every unvaccinated close contact from every dock, cab and shop for ten to fourteen days on every day of the quarter (Ex. MET-SAN-023, Ex. MET-SAN-024, Ex. MET-RIV-017, Ex. MET-LA-019). Functions: WF, WH, DR.¹²⁹

C. How the instruments reached the functions

PT. On every day of the quarter every port gate, marine terminal, chassis yard, intermodal ramp and air-cargo terminal in the country operated under a federal airborne-transmission control, the conveyance order's mask requirement, backed by criminal penalties and, at the sea ports, by the Captain of the Port's order authority as the Coast Guard's bulletins record; every crew change, credential and TWIC transaction ran under the conditions those bulletins record; the Port of Houston, the Port of New York and New Jersey, PhilaPort, the Port of Baltimore, the Port of Virginia, the Port of Savannah, the Florida ports, New Orleans, the Ports of Los Angeles, Long Beach, Oakland and Seattle-Tacoma and the Honolulu Harbor sat in counties whose own face-covering orders, exposure controls on every terminal as a workplace, overlaid the federal rule from July 17 onward.

DR. Every cross-border lane ran under the essential-travel limitation and the documentation it required; every team operation, driver-trainer pairing and cab with a passenger ran under the federal airborne-transmission control; every driver entering a port, port of entry, rail yard or transit-served terminal met the same control at the gate; every driver in California, Virginia, Washington, Oregon and New Mexico ran under a State occupational standard; every driver delivering into a hospital, nursing home or federal facility met the receiver's entry rules; and from dates between July 17 and September 3, 2021, and through September 30, every driver stepping onto a dock in the freight hubs named in subpart B worked under a county or city face-covering order, an exposure control on the dock as a workplace. Routes through Louisiana, Nevada, Oregon, Washington, Illinois, New Mexico, Hawaii and the District ran under State face-covering orders.

WH. Every general warehouse in the country was on OSHA's programmed-inspection list from July 7, 2021; every warehouse in California, Virginia, Washington, Oregon and New Mexico ran under a written prevention program, screening, exclusion and reporting rules with civil penalties; every warehouse in New York adopted an exposure-prevention plan by August 5 and activated it September 6; every warehouse in seven States, the District and the freight hubs of subpart B placed its whole workforce under face-covering orders, airborne-transmission controls on the floor, from dates between July 17 and September 3; every warehouse in San Diego, Riverside and Los Angeles Counties lost every exposed unvaccinated worker for ten to fourteen days by order.

MT and OP. The maintenance shop and the dispatch office were workplaces under the same standards, face-covering orders and exposure-prevention plans; the court and agency orders governed every filing and hearing; the Department of Transportation's statement recorded that collection sites remained limited; California's commercial licenses ran on extensions, as the DMV's release records, because the offices could not renew them.

CS and CB. Every hospital, clinic and nursing-home dock ran under the Healthcare ETS and, in California, Oregon, Washington, New Jersey, Massachusetts, Illinois, Connecticut, Maine, Maryland and the District, under health-care-worker vaccination orders that fixed who could be on the receiving side of the door; every federal facility received under attestation; every restaurant, bar, gym and venue in New York City, San Francisco, New Orleans and Honolulu could admit, and therefore order from a foodservice or beverage distributor for, only vaccinated patrons; every Canadian and Mexican customer transacted across a border limited to essential travel; every school district that placed its students under masking and quarantine orders was a customer for a foodservice distributor's school contract and an employer of the industry's workers' spouses.

HR and WF. Hiring ran on extended credentials and limited testing sites; the workforce's children were placed under school masking and quarantine orders in sixteen States and the District, and the schools of Tennessee, Montana and North Carolina ran under State orders dictating their rules; the commuting workforce rode under the federal airborne-transmission control on every bus and train.

D. Continuing suspension

The clause asks whether the operation "is fully or partially suspended during the calendar quarter due to orders." The adverbial phrase "during the calendar quarter" modifies "suspended"; Congress did not write "due to orders in effect during the calendar quarter." An operation that an order terminated in one quarter and that had not been restored to its ordinary course in the next is "partially suspended during" the next quarter "due to" the order, because a suspension is, on the United States' own agreed definition, "[t]he act of temporarily delaying, interrupting, or terminating something," and a delay does not end on the day the order that caused it expires.¹³⁰ Tri-State Memorial Hospital v. United States, No. 2:25-cv-0181-TOR, ECF No. 38 (E.D. Wash. May 28, 2026) (Tri-State), holds that a suspension includes a "delay" and that causation is but-for; the Notice recognizes both propositions in Q&A-22 (an employer suspended for part of a quarter is eligible for the whole quarter) and Q&A-16(4) (a "significant delay ... in moving operations" is itself "a partial suspension during that transition period," the two-week figure being offered "for example").¹³¹

The arithmetic for this industry

What the orders compelled this industry to dismantle is recorded in the orders themselves, and the orders' own step dates fix how long the restoration took. Pennsylvania closed five wholesale lines on March 19, 2020 and released its counties to the yellow phase on May 8, 15, 22 and 29 and June 5, 2020, under the Worker Safety Order and, from November 27, 2020, the Order for Mitigation and Enforcement that carried its requirements to May 31, 2021 (Ex. PA-022). New York closed non-essential wholesale trade on March 22, 2020, reopened it at fifty percent occupancy from May 15 and June 8, 2020, and made the guidance optional only on June 15, 2021, while the HERO Act plans it required by August 5, 2021 re-imposed screening, masking and distancing rules in every warehouse and activated them September 6. New Jersey's eleven warehouse rules ran from April 10, 2020, were folded into Executive Order 192 on November 5, 2020, ran as free-standing orders to June 4, 2021, and ran for unvaccinated or unverified employees, with the daily health checks, through September 30, 2021 under Executive Order 242 ¶¶ 2-3 and Executive Order 243 ¶¶ 1-4 (Ex. NJ-050, Ex. SEC-10-022). Ohio's sector sheet ran from May 4, 2020 to June 2, 2021; Minnesota's plans from April 27, 2020 to June 30, 2021; California's stay-at-home and Blueprint regime from March 19, 2020 to June 15, 2021, with the Cal/OSHA standard adopted November 30, 2020 readopted June 17, 2021 and in force in the quarter; Washington's proclamations from March 23, 2020 to June 30, 2021, with WAC 296-800-14035 readopted three times inside the quarter. A floor rebuilt in April 2020 for one-way flow, six-foot spacing, staggered shifts and fifty-percent occupancy was running in that configuration on July 1, 2021, and in five States and every hub named in subpart B the law required that it keep running so. The customers' docks reopened by steps: dining rooms at twenty-five percent in May 2020, fifty in June, closed again in the winter, and one hundred percent only on dates that ran from September 25, 2020 (Florida) to June 30, 2021 in the closure States that kept caps longest (New York and California June 15; Washington and Oregon June 30), and in Hawaii never; a foodservice distributor whose lanes were re-let, whose drop sizes were cut and whose delivery windows were rebuilt around those steps was, on July 1, 2021, running the lanes, drop sizes and delivery windows those orders had compelled, and Honolulu's, New York City's, San Francisco's and New Orleans' vaccination-proof orders re-cut its customers' seats in September. The credential pipeline ran on the motor-vehicle offices' schedules: California's behind-the-wheel tests stopped from March 27, 2020 and again from December 2020 to January 11, 2021, and every California commercial license issued or expiring since March 2020 ran on an extension to November 30, 2021; a driver whose skills test the State cancelled in 2020 entered the workforce on the State's testing schedule, and the license he held on July 1, 2021 ran on an extension the State granted because its offices could not renew it (Ex. AGY-ST-DMV-SOS-RECORDERS-017). The borders ran at essential travel from March 21, 2020 through November 8, 2021 without a day's interruption; a cross-border lane confined to documented essential loads on July 1, 2021 was confined because of the order of March 24, 2020 and its eighteen monthly renewals through September 22, 2021 (Ex. FED-217 to Ex. FED-235; Ex. FED-240 to Ex. FED-258). An employer whose operation was ordered suspended through June 30 was not walking normally on July 1, and the orders' own step dates fix the arithmetic.

The instruments still in force

When the last State capacity orders lifted on June 30, 2021, the instruments of subpart B remained: the conveyance order and its directives, implemented at every sea port through the Coast Guard's bulletins; the FRA's order; the land-border, entry, Title 42 and testing orders; the OSHA programs and the Healthcare ETS; the Task Force's rules for federal deliveries; the occupational standards of five States, Washington's Proclamation 20-25.14 and the Washington Ready plan, and New Jersey's Executive Order 192 requirements as carried by Executive Orders 242 and 243; New York's HERO Act plans and its Department of Health's face-covering rule, an airborne-transmission control on every business with a duty to furnish the coverings at its own expense; Hawaii's face-covering requirement, an airborne-transmission control on every indoor workplace in the State, and Executive Order 21-05; the emergencies of twenty-five States; the quarantine and isolation orders; the transit and court rules; and then, from July 17, the reinstatements. They are not the residue of a suspension; they are orders limiting commerce, travel and group meetings in force during the calendar quarter, and the interconnected-economy section below states the pathways by which each reached the operation.

E. The Service's grounds for the quarter, answered

"No orders in effect"

"Essential and open"

"Nominal effect"

"The employer was not the addressee"

"Guidance, not orders"

The FMCSA declaration

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 the federal conveyance order (an airborne-transmission control at every hub and in every multi-occupant cab) and its security directives, as implemented at every sea port and on every vessel through the Coast Guard's MSIB 02-21 Changes 2 and 3 (the bulletins cited as context), the Federal Railroad Administration's Emergency Order No. 32, the land-border notices of June 23, July 22, August 23 and September 22, 2021, the entry proclamations and the Title 42 and pre-departure orders, OSHA's revised National Emphasis Program naming general warehousing and its Healthcare ETS, the Safer Federal Workforce Task Force's rules and Executive Order 14042, the occupational standards of California, Virginia, Washington, Oregon and New Mexico, Washington's Proclamation 20-25.14 and the Washington Ready plan as enforced through WAC 296-800-14035, New Jersey's Executive Order 192 requirements as carried by Executive Orders 242 and 243, Georgia's mitigation duty of August 19, 2021, New York's HERO Act plans and their activation and its Department of Health's face-covering, masking and vaccination rules, the indoor face-covering orders, workplace infection-prevention and exposure-control requirements on every floor, shop and office, of Louisiana, Nevada, Oregon, Washington, Illinois, New Mexico, Hawaii and the District of Columbia, of Connecticut and California as to the unvaccinated, and of Los Angeles County, the Bay Area, Sacramento, Clark County, King County, Boulder County, Chicago, Dane County, St. Louis, Kansas City, Columbus, Charlotte, New Orleans and Jefferson Parish, Dallas County, Bexar County, Philadelphia, Baltimore, Montgomery County, Atlanta and Boston and their counterparts, the vaccination-proof conditions of entry in New York City, San Francisco, New Orleans and Honolulu, the health-care-worker vaccination orders of nine States and the District and the State-workforce vaccination-or-testing orders of five States, the school orders of sixteen States and the District and the school-rule orders of Tennessee, Montana and North Carolina, the quarantine and isolation orders of San Diego, Riverside and Los Angeles Counties, the court and transit orders, and the emergencies of twenty-five States (Ex. FED-020; Ex. FED-051; Ex. FED-052; Ex. AGY-USCG-PORTS-037; Ex. AGY-USCG-PORTS-038; Ex. AGY-AVIATION-SURFACE-014; Ex. FED-232; Ex. FED-235; Ex. FED-255; Ex. FED-258; Ex. FED-207; Ex. FED-208; Ex. FED-037; Ex. FED-038; Ex. FED-042; Ex. FED-083; Ex. FED-080; Ex. FED-272; Ex. FED-063; Ex. SEC-11-027; Ex. SEC-02-047; Ex. SEC-10-042; Ex. SEC-10-043; Ex. WA-072; Ex. WA-101; Ex. AGY-ST-LABOR-WORKPLACE-054; Ex. AGY-ST-LABOR-WORKPLACE-055; Ex. NJ-050; Ex. SEC-11-031; Ex. NV-041; Ex. OR-048; Ex. WA-078; Ex. HI-025; Ex. DC-057; Ex. CT-050; Ex. MET-LA-018; Ex. MET-SFO-071; Ex. MET-SAC-015; Ex. MET-LAS-006; Ex. MET-SEA-002; Ex. MET-DEN-033; Ex. MET-CHI-026; Ex. MET-MKE-023; Ex. MET-STL-021; Ex. MET-KC-002; Ex. MET-CMH-050; Ex. MET-CLT-001; Ex. MET-MSY-027; Ex. MET-MSY-063; Ex. MET-DFW-028; Ex. MET-SAT-067; Ex. MET-PHL-019; Ex. MET-BAL-017; Ex. MET-DCM-023; Ex. MET-ATL-063; Ex. MET-BOS-013; Ex. MET-NYC-017; Ex. MET-SFO-011; Ex. MET-MSY-029; Ex. MET-HNL-035; Ex. CA-030; Ex. IL-040; Ex. MET-SAN-024; Ex. TX-040; Ex. CA-027 and the exhibits collected in subpart B), caused a temporary delay, interruption and, as to the excluded worker, the unmasked patron and the non-essential crossing, termination of a portion of the operations of employers in the trucking, logistics, warehousing, wholesale and distribution industry, and that portion was more than nominal under any measure, including the United States' own safe harbor. The operation of the trade or business of employers in this industry was partially suspended during the calendar quarter due to those orders.

What this analysis does not claim was in force

The proof for this quarter rests on the federal, maritime, rail, border, entry, workplace, emergency, face-covering (workplace infection-prevention and exposure-control), vaccination, school, quarantine, court and transit instruments listed in subpart B. It rests on none of the following, each of which had expired before July 1, 2021 or took effect after September 30, 2021: the March and April 2020 stay-at-home and closure orders of every State (Ex. WA-016; Ex. SEC-11-021 and their counterparts); the winter 2020-21 re-tightening orders (Ex. WA-047; Ex. MN-032; Ex. MET-LA-012; Ex. MET-STL-074; Ex. MET-SFO-013 and their counterparts); New Jersey's Executive Orders 122 and 192 as free-standing orders (Executive Order 192's rules for unvaccinated or unverified employees and its daily health checks continued through Executive Orders 242 and 243 and are relied on in subpart B-7) (Ex. SEC-11-020; Ex. SEC-10-021; Ex. SEC-10-022); New York's Interim Guidance for Wholesale Trade as a mandatory document (optional from June 15, 2021) (Ex. SEC-11-022); Ohio's sector sheet (rescinded June 2, 2021) (Ex. SEC-11-030); Minnesota's preparedness plans (ended June 30, 2021) (Ex. SEC-10-045); Michigan's MIOSHA rules (rescinded June 22, 2021); Pennsylvania's Worker Safety Order and mitigation orders (the Worker Safety Order of April 15, 2020, re-enacted November 27, 2020 in the Order for Mitigation and Enforcement, Ex. PA-022, which expired May 31, 2021); the State traveler-quarantine orders (Ex. SEC-11-048; Ex. SEC-11-049; Ex. MA-025; Ex. SEC-11-046; Ex. MET-CHI-019), each ended between March 1 and June 2021; the federal leave mandate (ended December 31, 2020) (Ex. ECO-B-001); the FEMA export rule (ended June 30, 2021) (Ex. FED-075, Ex. FED-077, Ex. FED-078); the county dial orders of Colorado beyond their end dates (August 15-16 and, for Jefferson County, September 15, 2021) (Ex. MET-DEN-079, Ex. MET-DEN-030, Ex. MET-DEN-103); Nebraska's emergency, ended June 30, 2021 (Ex. NE-067), Vermont's emergency, ended June 15, 2021, and New York's Executive Order 202 and 205 series, rescinded effective June 25, 2021 (Ex. NY-049); Tennessee's Executive Order 88, issued September 30 and effective October 5, 2021 (Ex. TN-037); Prince George's County's Executive Order 22-2021 of October 4, 2021 as an instrument in force (Ex. MET-DCM-047, which recites the August 2021 orders); the Ninth Judicial Circuit's AO 2020-06-13 and 2020-06-14 of October 8 and 25, 2021 as instruments in force (Ex. MET-ORL-059, Ex. MET-ORL-045, which recite the August 23, 2021 order); Baltimore's rescission order of February 25, 2022 (Ex. MET-BAL-018); Atlanta's face-covering order as enforceable against private businesses after August 19, 2021 (Ex. MET-ATL-063); the vaccination-proof compliance dates that fell after the quarter (Los Angeles County's bars, October 7; King County, October 25 (Ex. MET-SEA-001); the City of Los Angeles, Chicago, Boston and Philadelphia in November 2021 and January 2022); Executive Order 14042's contractor deadline of December 8, 2021 (Ex. FED-063); OSHA's vaccination-or-testing standard of November 5, 2021 (Ex. FED-086); the land borders' reopening to vaccinated travelers on November 8, 2021 (Ex. FED-236; Ex. FED-259) and Proclamation 10294, which revoked the entry suspensions from that date (Ex. FED-209); FMCSA's declaration as anything other than posture (Ex. SEC-11-062); the Coast Guard's Marine Safety Information Bulletins as orders (they are cited as the regulator's record of the regime the conveyance order and the Captains of the Port's authority created); and the motor-vehicle agencies' closure notices and the Department of Transportation's enforcement statements as orders (they are cited as the agencies' records of the closures and limitations they implemented). Every instrument on which the finding rests is dated in subpart B.