Function by function
Each of the eleven functions that make up the operation of a manufacturer was partially suspended in every quarter from the second quarter of 2020 through the third quarter of 2021, by instruments that named the function or that governed the persons, places and transactions through which the function is performed. This section takes the functions one at a time. For each it states the instruments by quarter, the modification each instrument compelled, and the determination in the words of the statute. The instruments are cited by exhibit; the operative language is quoted in the layer and quarter sections above and is not repeated here except where the words themselves carry the point.
PF. Production floor
Second quarter of 2020: the closure orders of Michigan (Ex. MI-011, § 4: "all in-person work that is not necessary to sustain or protect life"), Pennsylvania (Ex. PA-002: "all businesses that are not life sustaining"), New York (Ex. NY-002; Ex. NY-003 with Ex. SEC-10-026), Illinois (Ex. SEC-10-034), Ohio (Ex. OH-011; Ex. OH-014), Washington (Ex. WA-016), California (Ex. CA-007), Massachusetts (Ex. MA-008), Minnesota (Ex. MN-010), Wisconsin (Ex. WI-002; Ex. WI-003) and Kentucky (Ex. KY-010), and the stay-home, telework, minimum-staffing and distancing orders of New Jersey (Ex. SEC-10-023 with Ex. SEC-10-020), Indiana (Ex. IN-006), Virginia (Ex. VA-004) and Oregon (Ex. OR-007); the restart orders that opened the floor on conditions, Michigan's Executive Order 2020-77 (Ex. MI-026, § 11(k): "Manufacturing facilities must also: (1) Conduct a daily entry screening protocol for workers, contractors, suppliers, and any other individuals entering the facility ...; (3) Suspend all non-essential in-person visits, including tours"), Pennsylvania's Worker Safety Order (Ex. PA-008), New Jersey's Executive Order 122 (Ex. SEC-10-020), New York's Phase 1 Interim Guidance for Manufacturing (Ex. NY-106), Minnesota's Preparedness Plan requirement (Ex. SEC-10-044), Massachusetts' Mandatory Workplace Safety Standards (Ex. SEC-10-046), Kentucky's Healthy at Work requirements, made a condition of reopening by the CHFS order of May 9, 2020 (Ex. SEC-10-051; Ex. SEC-10-053), Ohio's Stay Safe Ohio Order and its manufacturing requirements (Ex. SEC-10-048), Washington's Phase 1 manufacturing requirements (Ex. WA-034), made workplace law by the Department of Labor and Industries (Ex. AGY-ST-LABOR-WORKPLACE-050), Virginia's Executive Order 61 (Ex. VA-010) and Oregon's Executive Order 20-12 directives (Ex. OR-007); the federal Defense Production Act orders that placed named plants under priority (Ex. SEC-10-010; Ex. SEC-10-011; Ex. SEC-10-012), the meat-processing order (Ex. SEC-10-005) and the FEMA allocation rule (Ex. SEC-10-004). Third quarter of 2020: the same restart conditions, in force in every closure State; Michigan's Executive Order 2020-110 and its successors to Executive Order 2020-184 (Ex. MI-031); New Jersey's Executive Order 122 through Executive Order 192 (Ex. SEC-10-020; Ex. SEC-10-021); Virginia's Emergency Temporary Standard (Ex. SEC-10-042, effective July 27, 2020); Pennsylvania's face-covering and exposure-control order (Ex. PA-015); the statewide face-covering and exposure-control orders of thirty-three States (as compiled in Ex. LAW-231). Fourth quarter of 2020: MIOSHA's emergency rules (Ex. SEC-10-024; Ex. AGY-ST-LABOR-WORKPLACE-062; Ex. MI-054, Rule 5(8)) and the MDHHS Gatherings and Face Mask Orders (Ex. MI-059; Ex. MI-060; Ex. MI-062); Cal/OSHA's emergency standard (Ex. SEC-10-039, effective November 30, 2020); Oregon OSHA's temporary rule (Ex. SEC-10-054, effective November 16, 2020); Virginia's standard; New Jersey's Executive Order 192 (Ex. SEC-10-021); Pennsylvania's November 23 order (Ex. PA-022); Minnesota's Executive Order 20-99 (Ex. MN-032); Washington's November 17 restrictions (Ex. WA-047); California's Regional Stay at Home Order (Ex. CA-020); Kentucky's Executive Order 2020-968 (Ex. KY-033); Illinois' Tier 3 (Ex. SEC-10-038). First quarter of 2021: the same standards and orders through their dates; Virginia's Final Permanent Standard from January 27, 2021 (Ex. SEC-10-043); Michigan's Gatherings and Face Mask Orders (Ex. MI-076 and predecessors); Pennsylvania's mitigation orders to April 3 (Ex. PA-022). Second quarter of 2021: MIOSHA to June 22 (Ex. MI-076; Ex. AGY-ST-LABOR-WORKPLACE-063); Cal/OSHA readopted June 17 (Ex. SEC-10-041); Oregon's permanent rule from May 4 (Ex. SEC-10-055); Virginia's standard; New Jersey's Executive Order 192 to June 4 and Executive Order 243 after (Ex. SEC-10-022; Ex. NJ-050); Pennsylvania's face-covering and exposure-control order to June 28 (Ex. PA-100); Minnesota's plans to June 30 (Ex. MN-038); Massachusetts to May 29 (Ex. MA-048); Kentucky to June 11 (Ex. KY-049); Washington's Phase 3 to June 30 (Ex. WA-065); Illinois' Bridge Phase to June 11 (Ex. IL-037). Third quarter of 2021: the California, Oregon and Virginia standards on every day (Ex. SEC-10-041; Ex. SEC-10-055; Ex. SEC-10-043); Oregon's masking and medical-removal orders (Ex. SEC-10-056; Ex. SEC-10-057); Virginia's amendment of September 8 (Ex. SEC-10-043); New York's HERO Act plans from August 5 and their activation September 6 (Ex. SEC-10-028; Ex. SEC-10-031); the indoor face-covering and exposure-control orders of Washington (Ex. WA-078), Illinois (Ex. SEC-10-036), Nevada (Ex. NV-041), Louisiana (Ex. LA-036), New Mexico (Ex. NM-067), Oregon (Ex. OR-048), the District (Ex. DC-057) and Hawaii (Ex. HI-024), and of the metros named in the third-quarter section (Ex. MET-LA-018; Ex. MET-SFO-071; Ex. MET-STL-021; Ex. MET-KC-002; Ex. MET-MSY-027; Ex. MET-CHI-026; Ex. MET-PHL-019; Ex. MET-BAL-017; Ex. MET-BOS-013; Ex. MET-CLT-001; Ex. MET-CMH-050; Ex. MET-LAS-006); Columbus's ordinance naming "manufacturing, construction and agricultural workplaces" (Ex. MET-CMH-050); the National Emphasis Program (Ex. SEC-10-015).148
The modifications compelled
A floor closed by order produces nothing; a floor reopened on conditions produces what the conditions leave. The conditions were these: workers screened at the door on every shift; every worker six feet from every other, which on an assembly line means fewer stations or slower cycles; face coverings on every worker in every shared space; shifts staggered and breaks separated; shared tools and surfaces sanitized between uses; visitors barred or logged; exposed and symptomatic workers excluded for ten to fourteen days, in three States on pay; production suspended when a case was found until the area was cleaned; and in Michigan, from April 24 to October 2, 2020, and again under MIOSHA to May 24, 2021, every worker whose work could be done remotely kept off the floor. The Notice's own words describe the result: an order that "requires an employer to close its workplace for certain purposes, but the workplace may remain operational for other limited purposes" is a partial suspension (Notice 2021-20, Q&A-17, at 930); a modification that "has more than a nominal effect on the business operations" is a partial suspension; a manufacturer that must reduce its hours to sanitize is partially suspended.149
The operation of the production floor was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the closure orders, the restart conditions, the State workplace standards, the face-covering and exposure-control orders and the National Emphasis Program cited above.
WH. Warehouse, shipping and receiving
The same closure and restart orders governed the dock as governed the floor; in addition, on every day of every quarter, the dock ran under the orders on the carriers that serve it. Second quarter of 2020: the Federal Motor Carrier Safety Administration's COVID-19 emergency declaration and its hours-of-service relief, extended through 2021 and described here by category, which reordered every carrier's schedule around relief loads; the Coast Guard's Marine Safety Information Bulletins on arriving vessels (Ex. AGY-USCG-PORTS-001; Ex. AGY-USCG-PORTS-035), guidance to the maritime industry described here as such and cited as the context in which the ports operated; the FEMA export allocation rule (Ex. SEC-10-004), which stopped the designated goods at the port; the State closure orders' exemptions for "logistics" and "supply chain" that opened the dock only for essential loads (Ex. MI-011, § 9; Ex. SEC-10-023, ¶ 5). Third and fourth quarters of 2020: the FEMA rule as extended (Ex. SEC-10-008), the Coast Guard's revised bulletins, the face-covering and exposure-control orders on every driver in every State with such an order, the FMCSA declaration renewed monthly. First quarter of 2021: the federal conveyance order, applied by the Coast Guard's bulletin at "cargo handling facilities" from March 22, 2021 (Ex. FED-020; Ex. AGY-USCG-PORTS-033, the implementing bulletin); the FRA's Emergency Order No. 32 on every rail yard (Ex. AGY-AVIATION-SURFACE-014); the FEMA rule to June 30, 2021 (Ex. SEC-10-009); the land-border prohibitions renewed monthly (Ex. FED-222 and its successors to Ex. FED-231). Second quarter of 2021: the same, with the Coast Guard's MSIB 02-21 Change 2 applying the conveyance order at the ports (Ex. AGY-USCG-PORTS-037). Third quarter of 2021: the conveyance order and its directives (Ex. FED-020; Ex. FED-051; Ex. FED-052), applied at every sea port by the Coast Guard's Change 3 (Ex. AGY-USCG-PORTS-038); the FRA order; the land-border notifications of every month (Ex. FED-233; Ex. FED-234; Ex. FED-235); the Federal Maritime Commission's orders on the container carriers (Ex. AGY-USCG-PORTS-044; Ex. AGY-USCG-PORTS-050); the State and metro face-covering and exposure-control orders on every dock worker and every driver at the door.150
The modifications compelled
Every inbound container and every outbound load moved under conditions the dock did not set: masks at the gate, screening at the door, drivers kept in cabs or in separated areas, documents exchanged without contact, crews confined aboard ship, credentials extended by federal notice because the offices that issue them were closed, and, from March 2020 to June 30, 2021, the designated protective goods stopped at the border unless FEMA allowed them out. The dock that runs on a driver's schedule runs on the order that fixed it.
The operation of the warehouse, shipping and receiving was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the closure and restart orders, the FEMA allocation rule, the FRA's order and the conveyance order as applied at the ports, the land-border prohibitions, the federal conveyance order and the State and metro face-covering and exposure-control orders cited above.
SC. Supply chain
Second quarter of 2020: the closure orders of every State in which the industry's suppliers sit, which is every State; the federal entry proclamations barring the suppliers' personnel from China (Ex. FED-200), Iran (Ex. FED-201), the Schengen Area (Ex. FED-202), the United Kingdom and Ireland (Ex. FED-203) and Brazil (Ex. FED-204; Ex. FED-205); the land-border prohibitions from March 21, 2020, renewed monthly (Ex. FED-220 and its predecessors and successors); Proclamation 10052 (June 22, 2020), extended by Proclamation 10131 (Ex. FED-213), barring the H-1B, L-1 and J-1 personnel of the foreign suppliers; the DPA orders diverting named suppliers to federal priorities (Ex. SEC-10-010; Ex. SEC-10-011; Ex. SEC-10-012; Ex. SEC-10-013); the FEMA rule; the foreign closure orders that shut the industry's tier plants abroad, cited as context (Ex. FOR-001; Ex. FOR-004; Ex. FOR-005; Ex. FOR-012; Ex. FOR-013; Ex. FOR-027; Ex. FOR-032). Third and fourth quarters of 2020 and first quarter of 2021: the entry proclamations extended (Ex. FED-207 from January 25, 2021); Proclamation 10052 extended to March 31, 2021 (Ex. FED-213); the land border closed by monthly notification; the restart conditions on every supplier's floor; the winter re-tightening orders on every supplier's office. Second quarter of 2021: the entry proclamations adding India (Ex. FED-208); the land border closed (Ex. FED-231; Ex. FED-232); the scarce-materials designation (Ex. ECO-A-070); the chip-shortage finding of the White House's supply-chain review (Ex. ECO-A-101). Third quarter of 2021: the same proclamations to November 8 (Ex. FED-209 fixing the date); the land border closed every day (Ex. FED-233; Ex. FED-234; Ex. FED-235); the testing order on every returning engineer (Ex. FED-042); the scarce-materials designation to November 15 (Ex. ECO-A-071); the California, Oregon and Virginia standards on every supplier plant in those States; the metro face-covering and exposure-control orders on every supplier in those metros.151
The modifications compelled
The Notice says what these orders did: an employer whose suppliers "are unable to make deliveries of critical goods or materials due to a governmental order that causes the supplier to suspend its operations" is itself suspended "due to the governmental order that suspended operations of its supplier." The Q&A-12 example is an automobile parts manufacturer. The supplier plants of this industry were closed by the same orders that closed the industry, in the same weeks; their restart ran on the same conditions; their engineers could not enter the country; their trucks crossed a border under a federal prohibition on every day from March 21, 2020 through September 30, 2021; the components they make ran short in the sequence the Federal Reserve recorded: "Companies laid off workers, idled plants, and canceled orders for materials ... by late 2020, factories in some industries were scrambling to find the workers, parts, and materials."152
The operation of the supply chain was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the closure and restart orders on the industry's suppliers, the entry proclamations, the land-border prohibitions, the worker-visa suspensions, the Defense Production Act orders and the scarce-materials designation cited above.
DS. Distribution and sales
Second quarter of 2020: the closure orders on the industry's customers in every State; the orders that closed dealerships, showrooms and retail (Ex. MI-011; Ex. PA-002; Ex. SEC-10-034; Ex. SEC-10-023); the orders that closed construction in Pennsylvania, New York, Michigan, New Jersey, Washington and Massachusetts (Ex. PA-002; Ex. SEC-10-026; Ex. MI-011; Ex. NJ-011; Ex. WA-017; Ex. MA-008); the elective-procedure orders that emptied every hospital's purchasing of the industry's devices (Ex. NY-005; Ex. NJ-006; Ex. TX-004; Ex. OH-007; Ex. MN-005; and, for the winter of 2020-21, Ex. PA-025) and Pennsylvania's critical-medical-resources allocation order on every hospital's supplies (Ex. PA-052); the FEMA allocation rule stopping the industry's exports of the designated goods (Ex. SEC-10-004). Third and fourth quarters of 2020: the customer-capacity orders of every State; the restaurant, bar, gym, venue and school closures that fixed what the industry's food, beverage, equipment and furniture makers could sell; the winter re-closures (Ex. SEC-10-038; Ex. MI-060; Ex. MI-062; Ex. PA-022; Ex. WA-047; Ex. CA-020; Ex. MN-032; Ex. KY-033). First and second quarters of 2021: the capacity orders through their end dates; the land border on every Canadian and Mexican customer; the Texas and Florida statutes fixing every business's dealings with its customers (Ex. TX-032; Ex. FL-030). Third quarter of 2021: the Healthcare ETS and the CMS rules on every health-care customer (Ex. FED-080; Ex. FED-156); the health-care-worker vaccination orders on the same customers (Ex. ECO-B-083; Ex. ECO-B-055; Ex. ECO-B-030; Ex. ECO-B-037); the school orders on every school customer (Ex. ECO-B-029; Ex. ECO-B-054); the Task Force's rules on every federal customer (Ex. FED-272); the capacity and vaccination-proof orders of Hawaii, New Orleans, New York City, San Francisco and Honolulu on every hospitality customer (Ex. HI-025; Ex. MET-MSY-029; Ex. MET-NYC-017; Ex. MET-SFO-011; Ex. MET-HNL-035); Texas GA-38 and section 381.00316 (Ex. TX-036; Ex. FL-030); the land border every day (Ex. FED-235); the tribal and territorial orders on those markets (Ex. AGY-TRIBAL-020; Ex. AGY-TERRITORIES-034).153
The modifications compelled
A manufacturer sells into the operation of its customer. When the customer is closed by order the sale is terminated; when the customer is capped the sale is reduced; when the customer's staff are excluded, masked or under a vaccination mandate the customer's purchasing, receiving and installation run on the customer's order. The Notice's supplier rule runs downstream as well as up: the statute asks whether "the operation of the trade or business" was suspended, and the operation of selling is suspended when the buyer is ordered not to buy, not to open or not to receive. The United States agreed: "a business may be suspended 'due to' a government order addressing a third party."154
The operation of distribution and sales was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the closure, capacity, elective-procedure, school, health-care and customer-dealing orders on the industry's customers and the border, tribal and territorial orders on its markets cited above.
EN. Engineering, design and technical office
Second quarter of 2020: the closure orders, which closed the technical office outright in Michigan, Pennsylvania, New York, New Jersey, Illinois, Washington, California and Massachusetts (Ex. MI-011, § 4; Ex. PA-002; Ex. NY-003; Ex. SEC-10-023, ¶ 10; Ex. SEC-10-034, § 1(1); Ex. WA-016; Ex. CA-007; Ex. MA-008); the restart orders' remote-work mandates: Michigan's "Any work that is capable of being performed remotely ... must be performed remotely" (Ex. MI-026, § 11(a) and successors to October 2, 2020), New Jersey's telework mandate (Ex. SEC-10-023, ¶ 10, to June 4, 2021), Pennsylvania's Worker Safety Order and telework order (Ex. PA-008; Ex. PA-016), Washington's Phase 1 rules, Oregon's Executive Order 20-12 directives (Ex. OR-007). Third quarter of 2020: Michigan to October 2 (Ex. MI-031); New Jersey; Pennsylvania's July 16 order ("Unless not possible, all business are required to conduct their operations in whole or in part remotely through individual teleworking of their employees") (Ex. PA-016); Oregon; California's Blueprint (offices remote in Purple and Red) (Ex. CA-015; Ex. CA-055). Fourth quarter of 2020: MIOSHA Rule 5(8) ("The employer shall create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely") (Ex. AGY-ST-LABOR-WORKPLACE-062; Ex. MI-054; Ex. SEC-10-024); Pennsylvania's "Unless impossible" order (Ex. PA-022); New Jersey's Executive Order 192; Minnesota's Executive Order 20-99; Washington's November 17 order (office 25 percent) (Ex. WA-047); California's Regional order (Ex. CA-020); Illinois' Tier 3 (Ex. SEC-10-038); Kentucky's Executive Order 2020-968 (Ex. KY-033); Oregon's Two-Week Freeze and county tiers (Ex. OR-035). First quarter of 2021: MIOSHA (to May 24, 2021); Pennsylvania to April 3 (Ex. PA-022); New Jersey; Washington's Roadmap (Ex. WA-065); California's tiers to June 15 (Ex. CA-027); Oregon's county tiers (Ex. OR-035); Cal/OSHA's, Oregon OSHA's and Virginia's standards on every office (Ex. SEC-10-039; Ex. SEC-10-054; Ex. SEC-10-043). Second quarter of 2021: MIOSHA to May 24 (remote) and June 22 (rules) (Ex. AGY-ST-LABOR-WORKPLACE-063; Ex. MI-076); New Jersey to June 4 (Ex. SEC-10-022); Washington to June 30 (Ex. WA-065); California to June 15 (Ex. CA-027); the standards. Third quarter of 2021: the California, Oregon and Virginia standards (Ex. SEC-10-041; Ex. SEC-10-055; Ex. SEC-10-043); the HERO Act plans (Ex. SEC-10-031); the indoor face-covering and exposure-control orders on every office in the States and metros of the third-quarter section; the Task Force's rules on every federal site visit (Ex. FED-272); Nevada's Directive 048 naming "office buildings, breakrooms, hallways, cafeterias, meeting rooms" (Ex. NV-042).155
The modifications compelled
The technical office is where a design is reviewed at a bench, a prototype is handled, a tolerance is argued over a drawing, a customer's engineer sits with the manufacturer's. For fourteen months in Michigan, New Jersey and Pennsylvania, and for shorter periods in Washington, California, Illinois, Minnesota, Kentucky and Oregon, the order was that this work be done from home where it could be. Telework is not in the statute, and an office ordered remote is an office whose operation the order changed. The Notice's own words say the same: Q&A-16's third factor provides that where "the employer's physical work space is so critical to its trade or business operations that tasks central to the trade or business's operations are unable to be performed remotely, then this factor alone indicates that the employer is not able to continue comparable operations," and its named examples are "laboratories or manufacturing involving special equipment or materials that cannot be accessed or operated remotely"; the technical office attached to the floor, where the prototype is handled and the first-article inspection is run, is that case. Where the office was not closed it was masked, screened and distanced under a standard, and the customer's engineer could not come at all if he came from Europe, India or across the land border.156
The operation of engineering, design and the technical office was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the closure orders, the remote-work mandates, the State workplace standards and the face-covering and exposure-control orders cited above.
EV. Trade shows, customer events and demonstrations
Second quarter of 2020: the gathering prohibitions of every State (forty-nine States and the District had a gathering order in force in April 2020); the general closure and gathering orders under which every convention center went dark (Ex. NV-004 (Las Vegas); Ex. IL-005 (McCormick Place); Ex. MI-011 (Detroit); Ex. NY-005 and Ex. MET-NYC-006 (Javits)), and the halls' own records of the closure (Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-027; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-055); the entry proclamations barring foreign exhibitors and attendees (Ex. FED-202; Ex. FED-203; Ex. FED-204; Ex. FED-205). Third quarter of 2020: the gathering caps of every State (Illinois 50 (Ex. SEC-10-037); New Jersey 25 indoors (Ex. NJ-021); Michigan 10 indoors (Ex. MI-031); California none indoors (Ex. CA-015); Washington 10 (Ex. WA-034); Nevada 50 (Ex. NV-017)); the convention-center closures continued. Fourth quarter of 2020: Illinois' prohibition of all indoor gatherings from November 20 (Ex. SEC-10-038); Michigan's prohibition of indoor non-residential gatherings from November 18 (Ex. MI-060; Ex. ECO-B-076; Ex. MI-062); Pennsylvania's caps (Ex. PA-022); Minnesota's Executive Order 20-99 (Ex. MN-032); Washington (Ex. WA-047); California (Ex. CA-020); Kentucky (Ex. KY-033); Oregon (Ex. OR-035). First quarter of 2021: the caps through their dates (Michigan 10 indoors to March 5, 25 to April 19; Illinois Tier 1 and Phase 4 caps; Pennsylvania 10 percent indoors; New York 50 to March 22; New Jersey 10 to February 5; Washington 25 percent; California no indoor events in Purple). Second quarter of 2021: the caps to their end dates (Michigan May 24 and June 22 (Ex. MI-076); Illinois June 11 (Ex. IL-037); Pennsylvania May 31 (Ex. PA-035); New York May 19 and June 15 (Ex. NY-049); New Jersey May 19 and June 4 (Ex. SEC-10-022); Washington June 30 (Ex. WA-065); California June 15 (Ex. CA-027); Oregon June 30 (Ex. OR-043); Nevada May 1 (Ex. NV-036)); the entry proclamations. Third quarter of 2021: the entry proclamations and the land border on every foreign exhibitor and attendee (Ex. FED-207; Ex. FED-208; Ex. FED-235); the conveyance order on every attendee's flight (Ex. FED-020); Hawaii's ten-person indoor cap (Ex. HI-025); the Task Force's fifty-person rule on every federally hosted event (Ex. FED-272); the indoor face-covering and exposure-control orders of the third-quarter section on every show hall in Las Vegas (Ex. MET-LAS-006), Chicago (Ex. MET-CHI-026), Los Angeles (Ex. MET-LA-018), San Francisco (Ex. MET-SFO-071), New Orleans (Ex. MET-MSY-027), Philadelphia (Ex. MET-PHL-019), Boston (Ex. MET-BOS-013), the District (Ex. DC-057) and Honolulu (Ex. MET-HNL-033); the vaccination-proof conditions of New York City, San Francisco, New Orleans and Honolulu on every venue (Ex. MET-NYC-017; Ex. MET-SFO-011; Ex. MET-MSY-029; Ex. MET-HNL-035).157
The modifications compelled
Trade shows are group meetings for commercial purposes; the statute names them. A show cancelled by order is terminated; a show run at a cap is reduced; a show whose foreign exhibitors cannot enter the country and whose attendees fly under a federal face-covering and exposure-control order and enter the hall on proof of vaccination is run on the order's terms. The industry's calendar of national shows, the International Manufacturing Technology Show in Chicago in September 2020 among them, did not run inside those caps; the halls' own records fix the closures, and the orders that produced them are the exhibits.158
The operation of trade shows, customer events and demonstrations was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the gathering prohibitions and caps, the convention-center closures, the entry proclamations, the federal conveyance order, the face-covering and exposure-control orders and the vaccination-proof orders cited above.
TR. Business travel and field service
Second quarter of 2020: the stay-home orders of forty-three States, which confined every salesperson and technician; the State travel quarantines (Hawaii (Ex. HI-003), Alaska, Rhode Island, Florida (Ex. FL-012), Texas (Ex. TX-006), Kentucky, Massachusetts, New Mexico, Vermont, Maine); the entry proclamations and the land-border prohibitions (Ex. FED-220; Ex. FED-221); the CDC's No Sail Order of March 14, 2020, as extended April 9, 2020 (Ex. FED-027; Ex. FED-028); the DOT's minimum-service order that fixed the airline network to September 30, 2020 (Ex. AGY-AVIATION-SURFACE-028, Order 2020-4-2 (Apr. 7, 2020)). Third quarter of 2020: the New York-New Jersey-Connecticut quarantine of travelers from thirty-odd States (Ex. NY-006; Ex. CT-023); Chicago's emergency travel order (Ex. MET-CHI-019); Hawaii's quarantine; Massachusetts' order (Ex. MA-025); the land border; the face-covering and exposure-control orders on every hotel and airport in thirty-three States. Fourth quarter of 2020: the same quarantines (New York's test-out from November 4 (Ex. NY-006, as amended)); Pennsylvania's travel order (Ex. PA-022); the winter stay-home orders of California (Ex. CA-020), Illinois, Michigan, Minnesota and Kentucky; the land border. First quarter of 2021: the federal conveyance order from February 1 (Ex. FED-020); the testing order from January 26 (Ex. FED-042); the entry proclamations (Ex. FED-207); the land border (Ex. FED-222 and successors); the State quarantines through their dates (New York's domestic to April 1, 2021; Chicago's to June 11, 2021 (Ex. MET-CHI-019, ended by Ex. MET-CHI-018)); the FRA order (Ex. AGY-AVIATION-SURFACE-014). Second quarter of 2021: the conveyance order and its directives (Ex. FED-051); the testing order; the entry proclamations adding India (Ex. FED-208); the land border (Ex. FED-231; Ex. FED-232); Hawaii's Safe Travels (Ex. HI-023); New York's international rule to June 25 (Ex. NY-049); Kansas's list (Ex. KS-057). Third quarter of 2021: the conveyance order every day (Ex. FED-020; Ex. FED-051; Ex. FED-052); the testing order (Ex. FED-042); the entry proclamations (Ex. FED-207; Ex. FED-208); the land border every day (Ex. FED-233; Ex. FED-234; Ex. FED-235); Hawaii's Safe Travels (Ex. HI-024); Kansas's list (Ex. KS-057); the Task Force's mission-critical travel rule and the Department of Defense's travel restrictions (Ex. FED-270; Ex. FED-280); the DOT's minimum-service order to September 30 (Ex. AGY-AVIATION-SURFACE-035); American Samoa's border (Ex. AGY-TERRITORIES-071); the face-covering and exposure-control orders of every State and metro in the third-quarter section on every hotel, airport and customer plant.159
The modifications compelled
Field service is the manufacturer's technician at the customer's machine. For the six claimable quarters the technician flew under a federal face-covering and exposure-control order or did not fly at all, entered the customer's State under a quarantine or a test, entered the customer's plant under the customer's screening, and could not cross the land border or arrive from Europe, India or Brazil. The statute names "travel" as a thing the orders limit; the orders limited it on every day from March 2020 to September 30, 2021.
The operation of business travel and field service was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the stay-home orders, the State travel quarantines, the entry proclamations, the land-border prohibitions, the federal conveyance and testing orders and the airline-network orders cited above.
HR. Hiring, training and staffing
Second quarter of 2020: the closure orders, which stopped every hire; the FFCRA leave mandate on every employer under 500 (Ex. FED-170; Ex. FED-171), which fixed who could be at work and on what pay; the restart orders' screening, exclusion and training requirements (Ex. MI-026, § 11; Ex. PA-008; Ex. SEC-10-020; Ex. SEC-10-044; Ex. SEC-10-046; Ex. SEC-10-051; Ex. SEC-10-048); Proclamation 10052, as extended by Proclamation 10131 (Ex. FED-213), barring foreign hires; the State Department's suspension of routine visa services (Ex. FED-327; the Department's announcement, Ex. AGY-FED-LABOR-IMMIGRATION-060) and DHS's announced Form I-9 flexibility for remote workplaces (Ex. AGY-FED-LABOR-IMMIGRATION-068, an agency announcement described here as such); the State motor-vehicle closures as the agencies announced them (Ex. AGY-ST-DMV-SOS-RECORDERS-018) and the credential-extension orders and emergency notarization and licensing statutes (Ex. AGY-ST-DMV-SOS-RECORDERS-006; Ex. AGY-ST-DMV-SOS-RECORDERS-043). Third and fourth quarters of 2020: the same, with the FFCRA to December 31 (Ex. FED-172); Virginia's standard's training requirement (Ex. SEC-10-042); MIOSHA's training and records rules (Ex. SEC-10-024); Cal/OSHA's exclusion-pay rule (Ex. SEC-10-039); Oregon OSHA's training rule (Ex. SEC-10-054); the FFCRA paid-leave rule (Ex. FED-171; the Wage and Hour Division's posting of it, Ex. AGY-FED-LABOR-IMMIGRATION-001). First and second quarters of 2021: the standards; the National Emphasis Program from March 12 (Ex. SEC-10-014); Proclamation 10052 to March 31 (Ex. FED-213); the Healthcare ETS on the workforce's providers from June 21 (Ex. FED-080); MIOSHA to June 22 (Ex. MI-076). Third quarter of 2021: the standards and their training and exclusion rules (Ex. SEC-10-041; Ex. SEC-10-055; Ex. SEC-10-057 (medical removal); Ex. SEC-10-043); the HERO Act plans (Ex. SEC-10-031); the National Emphasis Program (Ex. SEC-10-015); the entry proclamations on every foreign hire (Ex. FED-207); Montana's section 49-2-312 (Ex. MT-072); the on-site contractor rules of the Task Force and DOT (Ex. FED-272; Ex. AGY-AVIATION-SURFACE-040); the quarantine directives of Arkansas, Kansas, New Hampshire and Indiana on every exposed worker (Ex. AR-073; Ex. KS-057; Ex. NH-063; Ex. IN-092).160
The modifications compelled
Hiring stopped when the floor closed; training moved off the floor or stopped; every new hire was screened, masked, distanced and, in four States, trained under a standard; every exposed worker was excluded for ten to fourteen days by order, in California, Oregon and Michigan on pay; every foreign hire was barred for a year; every licensing office was closed or by appointment. The Bureau of Labor Statistics recorded the result in the industry's own numbers: 1,361,000 jobs lost between February and April 2020, 350,000 still absent on September 30, 2021.161
The operation of hiring, training and staffing was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the closure orders, the FFCRA mandate, the restart conditions, the State workplace standards, the National Emphasis Program, the worker-visa suspensions and the quarantine directives cited above.
OP. Office, administration and finance
The remote-work mandates cited under EN governed the administrative office in the same words (Ex. MI-026; Ex. SEC-10-023; Ex. PA-016; Ex. PA-022; Ex. SEC-10-024; Ex. MN-032; Ex. WA-047; Ex. CA-020; Ex. SEC-10-038; Ex. KY-033). In addition, on every day of the six claimable quarters, the office's counterparties ran under orders: the courts (every State's judicial emergency order; the Supreme Court of Texas's forty-three emergency orders (Ex. TX-040; Ex. ECO-C-070); Virginia's judicial emergency "from March 16, 2020, through October 13, 2021" (Ex. VA-042); the Minnesota, South Dakota, Utah and Hawaii orders (Ex. MN-053; Ex. SD-045; Ex. UT-051; Ex. HI-068)); the licensing offices' closures, as the agencies announced them (Ex. AGY-ST-DMV-SOS-RECORDERS-018), and the credential-extension orders and emergency notarization statutes (Ex. AGY-ST-DMV-SOS-RECORDERS-006; Ex. AGY-ST-DMV-SOS-RECORDERS-043); the federal financial regulators' forbearance and moratoria (Ex. FED-354; Ex. FED-364; Ex. FED-379; Ex. FED-344); the eviction and foreclosure moratoria of every State with one (Ex. ECO-C-084; Ex. ECO-C-101; Ex. ECO-C-091; Ex. ECO-C-081; Ex. NM-009); the utility shut-off suspensions (Ex. WA-014). Third quarter of 2021: the standards and face-covering and exposure-control orders on every office in the third-quarter section; the Fortieth Emergency Order (Ex. TX-040); the moratoria to September 30 (Ex. FED-364; Ex. FED-379; Ex. ECO-C-084; Ex. ECO-C-101); Illinois' Executive Order 2020-30 to October 3 (Ex. IL-067); New Jersey's Executive Order 106 (Ex. ECO-C-081); the courthouse face-covering and exposure-control orders of Iowa, Utah, Maryland, Maine, Rhode Island, New Mexico, Pennsylvania's Fifth Judicial District and Maricopa County (Ex. IA-056; Ex. UT-051; Ex. MD-091; Ex. ME-074; Ex. RI-085; Ex. NM-066; Ex. MET-PIT-036; Ex. MET-PHX-016).162
The modifications compelled
The office collected, paid, litigated, recorded and financed through counterparties that were closed, remote, by appointment or under a moratorium. A collection suit that could not be filed, a lien that could not be recorded, an eviction of a defaulting tenant that could not be executed, a title that could not be transferred, a notary that could not be found and a hearing held by video are each a modification the office did not choose.
The operation of the office, administration and finance was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the remote-work mandates, the judicial emergency orders, the recorder and licensing closures, the moratoria and the face-covering and exposure-control orders cited above.
WF. Workforce availability and commuting
Second quarter of 2020: the school closures of every State (Ex. LAW-212; Ex. LAW-229), which kept the workforce's children at home; the child-care closures and emergency-only rules (Ex. ECO-B-026 (New Jersey Executive Order 110); Ex. ECO-B-111 (Oregon Executive Order 20-19); Ex. ECO-B-081 (Illinois Executive Order 2020-10); Ex. PA-002; Ex. SEC-10-034); the FFCRA leave mandate (Ex. FED-170); the transit orders (rear-door boarding, capacity caps, face-covering rules on every system (Ex. MET-NYC-005; Ex. MET-SEA-004; Ex. NJ-013)); the stay-home orders' confinement of every household. Third and fourth quarters of 2020: the school reopening orders that ran remote or hybrid (Ex. NJ-032; Ex. ECO-B-028; Ex. ECO-B-049); the quarantine orders on every exposed household; the face-covering and exposure-control orders on every commuter in thirty-three States; the FFCRA to December 31 (Ex. FED-172); the winter stay-home orders. First and second quarters of 2021: the federal conveyance order on every commute (Ex. FED-020; Ex. FED-051); the school and child-care orders through the spring; the quarantine directives. Third quarter of 2021: the conveyance order every day (Ex. FED-020; Ex. FED-051; Ex. FED-052); the school and child-care face-covering and exposure-control orders of New Jersey (Ex. NJ-055), New York (Ex. ECO-B-054), Connecticut (Ex. CT-050), Illinois (Ex. IL-040), Pennsylvania (Ex. PA-042), Rhode Island (Ex. RI-055), Kentucky (Ex. KY-052), California (Ex. CA-034), Delaware (Ex. DE-044), Louisiana (Ex. LA-054), Massachusetts (Ex. MA-071), Nevada (Ex. NV-041), New Mexico (Ex. NM-067), Washington (Ex. WA-075), Oregon (Ex. OR-045), Hawaii (Ex. HI-043) and the District (Ex. DC-074), and the county orders of Michigan (Ex. MI-081; Ex. MET-DET-013), Texas (Ex. MET-DFW-028; Ex. MET-HOU-038) and Tennessee (Ex. MET-BNA-077); the classroom-quarantine rules of Indiana, Florida, Ohio and Louisiana (Ex. IN-092; Ex. FL-032; Ex. OH-084; Ex. LA-054); the quarantine directives of every State health department; the health-care-worker mandates on the workforce's providers (Ex. ECO-B-083; Ex. ECO-B-055; Ex. ECO-B-030).163
The modifications compelled
A worker whose child's school is closed, remote, or quarantined for ten days is a worker who is not on the line; a worker whose bus runs at half capacity under a face-covering and exposure-control order arrives late or not at all; a worker exposed at a family gathering is excluded for ten to fourteen days by the health department's directive. The Bureau of Labor Statistics counted 5.2 million persons in July 2021 and 5.0 million in September 2021 who "had been unable to work because their employer closed or lost business due to the pandemic"; the Federal Reserve named "childcare needs" among the causes of the quarter's labor shortages. These are facts and circumstances; the school, child-care, transit and quarantine orders are the orders.164
The operation of the workforce, in its availability and its commute, was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the school and child-care orders, the transit and conveyance orders, the quarantine directives, the FFCRA mandate and the stay-home orders cited above.
CB. Customer businesses and end markets
The instruments cited under DS governed the customer as a purchaser; those cited here governed the customer's own operation and thereby the demand for the industry's goods. Second quarter of 2020: the closure of every business not exempted as essential in forty-three States; the elective-procedure orders in every State; the construction shutdowns of six States; the restaurant, bar, hotel, venue, school and college closures of every State; the FEMA rule on the export customers; the foreign closure orders on the export customers, cited as context (Ex. FOR-006; Ex. FOR-007; Ex. FOR-009; Ex. FOR-014; Ex. FOR-022; Ex. FOR-033; Ex. FOR-035; Ex. FOR-036; Ex. FOR-037). Third and fourth quarters of 2020 and first quarter of 2021: the capacity orders on every customer; the hospital surge orders that again postponed elective procedures in the winter (Ex. PA-101 predecessors; Ex. CA-020; Ex. MN-032; Ex. AK-092 predecessors); the school orders. Second quarter of 2021: the capacity orders to their dates; the Texas and Florida statutes. Third quarter of 2021: the Healthcare ETS, the CMS rules and the health-care-worker mandates on every hospital, clinic and nursing home (Ex. FED-080; Ex. FED-156; Ex. ECO-B-083; Ex. ECO-B-055; Ex. ECO-B-030; Ex. ECO-B-037; Ex. ECO-B-052; Ex. MD-058; Ex. ME-061; Ex. CO-055; Ex. MA-067; Ex. RI-064; Ex. OR-051; Ex. NM-071); Alaska's and Idaho's crisis-standards and procedure-postponement orders (Ex. AK-092; Ex. ID-064; Ex. ID-072); the elective-procedure reduction orders of Pennsylvania to August 23 (Ex. PA-101) and Oregon's Executive Order 21-29 (Ex. OR-047); the school orders on every school and college customer; the Task Force's rules on every federal customer; the hospitality caps and vaccination-proof orders on every hospitality customer (Ex. HI-025; Ex. MET-MSY-029; Ex. MET-NYC-017; Ex. MET-SFO-011; Ex. MET-HNL-035; Ex. AGY-TERRITORIES-034; Ex. AGY-TERRITORIES-035); the Texas, Florida, Georgia and Arizona statutes and orders on every business's dealings (Ex. TX-036; Ex. FL-030; Ex. GA-043; Ex. AZ-044); the land border on every Canadian and Mexican customer (Ex. FED-235); the Navajo Nation's Orange Status on every business on its lands (Ex. AZ-082).165
The modifications compelled
A hospital under a staff-vaccination mandate that loses ten percent of its nurses postpones procedures and the devices those procedures consume; a school under a quarantine rule buys for the students who are present; a restaurant at a cap orders equipment for the seats it can fill; a Canadian customer that cannot send its engineer across the border does not commission the machine. The interconnected economy is the mechanism the next section states; the orders on the customers are the orders.
The operation of the industry's customer businesses and end markets, and therefore the industry's operation of selling into them, was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the closure, capacity, elective-procedure, health-care, school, hospitality, customer-dealing and border orders on the industry's customers cited above.
The functions together
The eleven determinations above are made function by function because the Service's letters are written as though an order must name a plant to suspend it. The statute asks about "the operation of the trade or business," and the operation of a manufacturer is the eleven functions running together: a floor that produces what the dock can ship, from parts the suppliers can deliver, for customers who can receive, sold by people who can travel to shows that can be held, staffed by workers who can get to work, administered by an office that can collect and record. In every one of the six claimable quarters, an order from an appropriate governmental authority limited commerce, travel or group meetings in each of those eleven places. The Notice's own rule closes the point: an employer suspended "during a portion of a calendar quarter is an eligible employer for the entire calendar quarter," and an employer whose operation is suspended in a portion of its business is suspended "due to the governmental order" as to the whole.166