Manufacturing

The six quarters

In each of the six claimable quarters, 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 manufacturers throughout the United States. This section states, for each quarter, the orders in force with their status on the quarter's first and last day, the functions they reached, and the finding in Tri-State's terms. The third quarter of 2021 follows as a self-contained section. Every instrument's status is stated from its effective and end dates; an instrument is treated as in force in a quarter only if its effective date is on or before the quarter's last day and its end date, if any, is on or after the quarter's first day.

The second quarter of 2020

Wages paid after March 12, 2020 were claimed on the second-quarter Form 941, so the orders of March 13 through 31, 2020 belong to this quarter's proof.¹¹¹ On April 1, 2020 the production floors of non-listed manufacturers were closed or confined to minimum basic operations in Michigan (Ex. MI-011), Pennsylvania (Ex. PA-002; Ex. PA-003), New York (Ex. NY-002; Ex. NY-003; Ex. SEC-10-026), Illinois (Ex. SEC-10-034), Ohio (Ex. OH-011), Wisconsin (Ex. WI-002), Minnesota (Ex. MN-010), Massachusetts (Ex. MA-008), Kentucky (Ex. KY-010), Washington (Ex. WA-016), California (Ex. CA-007), Connecticut (Ex. CT-007), Vermont (Ex. VT-010), Hawaii (Ex. HI-004), Delaware (Ex. DE-005), Colorado (Ex. CO-012; Ex. CO-016), New Mexico (Ex. NM-006), New Hampshire (Ex. NH-009), Idaho (Ex. ID-003), Montana (Ex. MT-009), Alaska (Ex. AK-013), North Carolina (Ex. NC-005), Maryland (Ex. MD-005) and the District of Columbia (Ex. DC-005); Texas closed non-CISA manufacturing from April 2 (Ex. TX-008), Georgia confined non-critical businesses to minimum basic operations from April 3 (Ex. GA-010), and Nevada, Louisiana, Indiana, Oregon, Virginia, Rhode Island, New Jersey and the remaining States bound the floor by stay-at-home, telework, minimum-staffing, distancing and gathering orders (Ex. NV-012; Ex. LA-005; Ex. IN-006; Ex. OR-007; Ex. VA-006; Ex. RI-009; Ex. SEC-10-023).¹¹² Every State had closed its schools (Ex. ECO-B-073; Ex. ECO-B-077; Ex. ECO-B-018); child care was confined to essential workers' children (Ex. ECO-B-026; Ex. ECO-B-111); the FFCRA leave mandate took hold on April 1 (Ex. FED-170; Ex. FED-171); the Defense Production Act orders of March 18, 23 and 27 and April 2 and 3 and the FEMA export bar of April 7 governed the national supply of the goods the industry makes and buys (Ex. SEC-10-001; Ex. SEC-10-002; Ex. SEC-10-003; Ex. SEC-10-010; Ex. SEC-10-011; Ex. SEC-10-012; Ex. SEC-10-013; Ex. SEC-10-004); the entry proclamations, the land-border closure and the Title 42 order were in force (Ex. FED-202; Ex. FED-203; Ex. FED-216; Ex. FED-239; Ex. FED-034); the State Department's visa suspension, the USCIS closure and the federal telework directives were in force (Ex. FED-327; Ex. FED-324; Ex. FED-264); the courts were closed (Ex. FED-295; Ex. FED-338; Ex. ECO-C-072); the motor-vehicle offices were closed, as the agencies announced (Ex. AGY-ST-DMV-SOS-RECORDERS-018); and the Coast Guard's vessel guidance, described here as such, and the Treasury's suspension finding reached the ports (Ex. AGY-USCG-PORTS-006; Ex. AGY-USCG-PORTS-066).¹¹³ New Jersey's manufacturing protocol took effect April 10 (Ex. SEC-10-020); Michigan's plants restarted at 12:01 a.m. on May 11 under Executive Order 2020-77's safeguards (Ex. MI-026); Kentucky's on May 11 under Requirements Version 1.2, made a condition of reopening by the CHFS order of May 9 (Ex. SEC-10-051; Ex. SEC-10-053); Minnesota's non-customer-facing plants on April 27 with a Preparedness Plan (Ex. SEC-10-044); Ohio's on May 4 under the Stay Safe Ohio Order (Ex. SEC-10-048); Massachusetts' on May 18 under the manufacturing standards (Ex. SEC-10-046); Pennsylvania's by county from May 8 under the Worker Safety Order (Ex. PA-010; Ex. PA-008); New York's by region from May 15 at "50% of the maximum occupancy" (Ex. NY-106); Illinois' on May 29 under Executive Order 2020-32's requirements (Ex. SEC-10-035); California's statewide on May 8 under mandatory industry guidance (Ex. CA-015); the President placed meat and poultry plants under DPA direction on April 28 (Ex. SEC-10-005); the President suspended the entry of most new immigrants from April 23 and of H-1B, H-2B, L and J workers from June 24 (Ex. FED-210; Ex. FED-211). On June 30, 2020 the restart safeguards were in force by order in every closure State; statewide face-covering and exposure-control orders had issued in at least twenty jurisdictions (Ex. CT-016; Ex. IL-013; Ex. MI-020; Ex. NY-017; Ex. NJ-011; Ex. NJ-013; Ex. PA-008; Ex. RI-015; Ex. VA-012; Ex. CA-016; Ex. NV-019; Ex. NM-016; Ex. WA-037; Ex. MD-008; Ex. DE-017; Ex. ME-021; Ex. MA-016; Ex. HI-006; Ex. NC-013); Illinois had capped every venue at fifty (Ex. SEC-10-037); the FEMA export bar, Executive Order 13917 and the entry proclamations were in force; New York's Executive Order 205 had quarantined travelers from designated States since June 25 (Ex. NY-006); and the Michigan safeguards were carried by Executive Order 2020-110's command that "[a]ny work that is capable of being performed remotely ... must be performed remotely" (Ex. MI-031).¹¹⁴ The metros ran ahead of the States: the Bay Area's shelter orders of March 16-17 (Ex. MET-SFO-001), New York City's 100 percent reduction of March 25 (Ex. MET-NYC-006), Los Angeles County's Safer at Home order of March 19 (Ex. MET-LA-003), Harris County's Stay Home Work Safe order of March 24 (Ex. MET-HOU-005), Dallas County's plant rules of April 2 (Ex. MET-DFW-011), St. Louis City and County's closures of March 23 (Ex. MET-STL-006; Ex. MET-STL-044), Denver's of March 24 (Ex. MET-DEN-005), Milwaukee's of March 25 (Ex. MET-MKE-030), San Diego's of April 9 (Ex. MET-SAN-004), Sacramento's of March 19 (Ex. MET-SAC-001) and Kansas City's of March 24 (Ex. MET-KC-078).¹¹⁵

PF: the production floor stopped by order in the closure States and restarted by order on the State's conditions, and ran at six feet, in staggered shifts, with screened entrants and masked workers in every other State that issued a protocol (Ex. MI-026; Ex. SEC-10-051; Ex. SEC-10-046; Ex. SEC-10-035; Ex. SEC-10-020; Ex. SD-009; Ex. TX-008). WH: the dock ran under New Jersey's visitor ban, Kentucky's driver rules and the port authorities' gate rules (Ex. SEC-10-020; Ex. SEC-10-051; Ex. AGY-USCG-PORTS-078; Ex. AGY-USCG-PORTS-081). SC: the tier suppliers of the Great Lakes, the Northeast and the Pacific coast were closed by order and the national supply of protective equipment was allocated and its export barred (Ex. MI-011; Ex. PA-002; Ex. NY-003; Ex. WI-003; Ex. SEC-10-004; Ex. FED-074); foreign inputs moved under the entry proclamations and land-border closure in the circumstances of Ontario's and Mexico's closures (Ex. FED-216; Ex. FOR-005; Ex. FOR-006). DS and CB: every customer class was closed or confined by its own orders, and motor-vehicle output fell more than 70 percent in April (Ex. SEC-10-090). EN and OP: the telework mandates of New Jersey, New York, Minnesota, Oregon, Kentucky, Illinois, Georgia, Colorado, Maryland, the District and every closure State reached the technical office (Ex. SEC-10-023; Ex. NY-003; Ex. MN-010; Ex. OR-007; Ex. KY-010; Ex. IL-013; Ex. GA-010; Ex. CO-011; Ex. MD-005; Ex. DC-005). EV and TR: every gathering was prohibited or capped, every show was cancelled under those caps, and travel was confined by the stay-at-home orders and the spring quarantines of Texas, Florida, Rhode Island, Hawaii, Alaska, Vermont, Maine, Delaware, Kentucky, Montana and Idaho (Ex. TX-006; Ex. FL-012; Ex. RI-009; Ex. HI-003; Ex. AK-012; Ex. VT-012; Ex. ME-013; Ex. DE-010; Ex. KY-011; Ex. MT-010; Ex. ID-004). HR: the motor-vehicle offices, the consulates and USCIS were closed (the motor-vehicle closures as announced, Ex. AGY-ST-DMV-SOS-RECORDERS-018; Ex. FED-327; Ex. FED-324). WF: every worker's children were home by order and every worker under a quarantine order was released with pay under a federal statute (Ex. ECO-B-073; Ex. FED-170).

During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the State stay-at-home and non-essential-closure orders and their restart orders (Ex. MI-011; Ex. MI-026; Ex. PA-002; Ex. PA-003; Ex. NY-003; Ex. SEC-10-034; Ex. SEC-10-035; Ex. OH-011; Ex. SEC-10-048; Ex. WI-002; Ex. MN-010; Ex. SEC-10-044; Ex. MA-008; Ex. SEC-10-046; Ex. KY-010; Ex. SEC-10-051; Ex. SEC-10-053; Ex. WA-016; Ex. CA-007; Ex. CA-015; Ex. CT-007; Ex. TX-008; Ex. GA-010 and the instruments in the State table on this page), the manufacturing protocols of New Jersey (Ex. SEC-10-020; Ex. SEC-10-023), the Defense Production Act orders and the FEMA export bar (Ex. SEC-10-001; Ex. SEC-10-010; Ex. SEC-10-004), the entry proclamations and the land-border closure (Ex. FED-202; Ex. FED-216), the FFCRA mandate and the school and child-care closures (Ex. FED-170; Ex. ECO-B-073), the metro closures (Ex. MET-SFO-001; Ex. MET-NYC-006; Ex. MET-LA-003), the court, consular, motor-vehicle and immigration-office closures (Ex. FED-295; Ex. FED-327; Ex. FED-324; the motor-vehicle closures as announced, Ex. AGY-ST-DMV-SOS-RECORDERS-018, and the credential orders they occasioned, Ex. AGY-ST-DMV-SOS-RECORDERS-006) and the closure orders on every customer class, caused a temporary delay, interruption or termination of a more than nominal portion of the operations of manufacturers throughout the United States. They did so by stopping the production floor outright in some twenty-five jurisdictions and restarting it only on the State's terms, by fixing every remaining floor's density, shifts and entry conditions, by closing the suppliers and the customers, by allocating the industry's inputs and barring its exports, by confining its engineers and technicians to their homes and its customers to theirs, and by removing the parents of 55.1 million children from the workforce.¹¹⁶

The third quarter of 2020

On July 1, 2020 the restart safeguards were law in Michigan (Ex. MI-031; the safeguards of Executive Order 2020-91 carried by Executive Orders 2020-97, -114, -145, -161, -175 and -184 to October 2, 2020), New Jersey (Ex. SEC-10-020; Ex. SEC-10-023), Kentucky (Ex. SEC-10-051; Ex. SEC-10-053), Massachusetts (Ex. SEC-10-046), Illinois (Ex. SEC-10-037), New York (Ex. NY-106), Minnesota (Ex. SEC-10-045), Pennsylvania (Ex. PA-008; Ex. PA-011), Ohio (Ex. OH-019), California (Ex. CA-015), Washington (Ex. WA-034; Ex. AGY-ST-LABOR-WORKPLACE-050) and Connecticut (Ex. CT-018; Ex. CT-021); Virginia's Safety and Health Codes Board adopted the first State workplace standard on July 15, effective July 27, applying to "every employer, employee, and place of employment" (Ex. SEC-10-042); Pennsylvania's July 15 order required telework "[u]nless not possible" and cut indoor dining to 25 percent (Ex. PA-016); Illinois' Phase 4 order capped every venue and meeting space at fifty (Ex. SEC-10-037); Michigan's Executive Order 2020-110 required that "[a]ny work that is capable of being performed remotely ... must be performed remotely" (Ex. MI-031); statewide face-covering and exposure-control orders reached every production floor in more than thirty States, including Texas from July 3 (Ex. TX-022), Ohio from July 23 (Ex. OH-030), Minnesota from July 25 (Ex. MN-027), Indiana from July 27 (Ex. IN-035), Alabama from July 16 (Ex. AL-027), Arkansas from July 20 (Ex. AR-009), Louisiana from July 13 (Ex. LA-014), Kentucky from July 10 (Ex. KY-022), Wisconsin from August 1 (Ex. WI-009), Vermont from August 1 (Ex. VT-027), Montana from July 15 (Ex. MT-016), Colorado from July 17 (Ex. CO-031), Oregon statewide indoors from July 1 and in all office spaces from August 13 (Ex. OR-025), Maryland in every shared workplace from July 31 (Ex. MD-014), West Virginia from July 7 (Ex. WV-041) and Kansas on every business from July 3 (Ex. KS-030); the travel quarantines of New York (Ex. NY-006), Connecticut (Ex. CT-023), Massachusetts (Ex. MA-025), Rhode Island (Ex. RI-024), Vermont, Maine, New Hampshire (Ex. NH-045), Hawaii (Ex. HI-003), Alaska (Ex. AK-039), New Mexico (Ex. NM-024), Kansas (Ex. KS-053) and Chicago (Ex. ECO-C-031) attached fourteen days' exclusion to every field-service call and customer visit into those States; FEMA extended the export bar on August 10 (Ex. SEC-10-008) and HHS the scarce-materials designation on July 30 (Ex. ECO-A-069); the entry proclamations and the land-border closure continued (Ex. FED-202; Ex. FED-203; Ex. FED-204; Ex. FED-211; Ex. FED-220; Ex. FED-221; Ex. FED-222); the FFCRA mandate ran the whole quarter (Ex. FED-170; Ex. FED-172); the CDC's eviction order took effect September 4 (Ex. FED-022); the President ordered essential medicines made in the United States on August 6 (Ex. SEC-10-006); Detroit's plant rules were in preparation and Los Angeles County's exposure-reporting and quarantine rules bound every plant in the county (Ex. MET-LA-009; Ex. MET-LA-014); New York City held gyms closed to September 2 and ran quarantine checkpoints from August 5 (Ex. MET-NYC-008); Illinois' regional mitigation tiers began August 18 (Ex. IL-022); Nevada's Directive 033 of September 30 fixed venues at 250 or 50 percent from October 1 (Ex. NV-028). On September 30, 2020 every one of those instruments other than the Michigan gubernatorial orders (which ran to October 2) and Nevada's Directive 033 (issued September 30 and effective October 1) was in force.¹¹⁷

PF: every floor in a restart State ran under written safeguards, and every floor in a face-covering State ran under that State's airborne-transmission controls, face coverings among them, on every shift where a non-household person was present; Virginia's standard classified every job by exposure and required plans and training (Ex. SEC-10-042). WH: the dock ran under the same protocols and under the port authorities' rules (Ex. AGY-USCG-PORTS-078; Ex. AGY-USCG-PORTS-081). SC: the export bar and the scarce-materials designation continued; foreign inputs moved under the entry proclamations and the land-border closure, in the circumstances of Mexico's staged reopening from June 1 and Canada's discretionary-entry bar (Ex. FED-220; Ex. FOR-007; Ex. FOR-001); the Federal Maritime Commission recorded blank sailings at 21 percent of voyages in May and the import surge of the fall (Ex. ECO-A-100). DS and CB: customers reopened by phase at capacity, and the meat and poultry plants that buy the industry's equipment ran under Executive Order 13917 with 16,233 infected workers in 239 facilities by May 31 (Ex. SEC-10-005; Ex. ECO-A-081). EN and OP: Pennsylvania's "[u]nless not possible" telework rule, Michigan's remote-work command, New Jersey's telework mandate, Oregon's office prohibition in non-Phase II counties, New York's 50 percent office ceiling and Connecticut's 50 percent office rule governed the technical office (Ex. PA-016; Ex. MI-031; Ex. SEC-10-023; Ex. OR-020; Ex. NY-131; Ex. CT-079). EV and TR: Illinois' fifty-person venue cap closed the September show at McCormick Place, the venue caps of every State closed the rest, and a technician entering New York, Connecticut, Massachusetts, Hawaii, Alaska, New Mexico or Chicago from a listed State was excluded for fourteen days (Ex. SEC-10-037; Ex. NY-006; Ex. CT-023; Ex. MA-025; Ex. HI-003; Ex. AK-039; Ex. NM-024; Ex. ECO-C-031). HR: the motor-vehicle offices reopened by appointment under capacity caps and masks; the consulates resumed post by post from July 14; the entry suspension on H-1B, H-2B, L and J workers ran the whole quarter (Ex. FED-328; Ex. FED-211). WF: schools opened remote or hybrid in most large districts under mandatory State standards (Ex. NJ-032; Ex. ECO-B-028; Ex. ECO-B-049), the FFCRA mandate released every parent and every quarantined worker with pay, and the transit agencies ran reduced service.

During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the restart orders and their workplace safeguards (Ex. MI-031; Ex. SEC-10-020; Ex. SEC-10-051; Ex. SEC-10-053; Ex. SEC-10-046; Ex. SEC-10-037; Ex. NY-106; Ex. SEC-10-045; Ex. PA-008; Ex. PA-016; Ex. OH-019; Ex. CA-015; Ex. WA-034), Virginia's emergency temporary standard (Ex. SEC-10-042), the statewide face-covering and exposure-control orders of more than thirty States (Ex. TX-022; Ex. OH-030; Ex. MN-027; Ex. IN-035; Ex. LA-014; Ex. KY-022; Ex. WI-009; Ex. OR-025; Ex. MD-014; Ex. KS-030 and the instruments in the State table), the venue caps (Ex. SEC-10-037; Ex. NV-017), the travel quarantines (Ex. NY-006; Ex. CT-023; Ex. MA-025; Ex. HI-003; Ex. NM-024), the FEMA export bar and the DPA orders (Ex. SEC-10-008; Ex. SEC-10-005; Ex. SEC-10-006), the entry proclamations and land-border closure (Ex. FED-211; Ex. FED-220), the FFCRA mandate (Ex. FED-172) and the remote and hybrid school orders (Ex. NJ-032), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of manufacturers throughout the United States. They did so by fixing the density, shifts, entry conditions and face coverings of every production floor, by capping the venues at which the industry sells, by excluding its technicians from a dozen States for fourteen days at a time, by keeping its technical offices remote, by allocating its inputs and barring its exports, and by keeping its workforce's children out of school.

The fourth quarter of 2020

On October 1, 2020 the third-quarter regime was in force; on October 2 the Michigan Supreme Court ended the Governor's orders and on October 5 the Michigan Department of Health and Human Services re-imposed the limits by epidemic order under MCL 333.2253 with a civil fine of "up to $1,000 for each violation or day" (Ex. MI-050), and on October 14 MIOSHA re-imposed every workplace rule by emergency rule, with a manufacturing-specific rule and a prohibition of in-person work "to the extent that their work activities can feasibly be completed remotely" (Ex. SEC-10-024; Ex. AGY-ST-LABOR-WORKPLACE-062; Ex. MI-054); Detroit's Emergency Order of October 9 required daily entry screening with temperature screening, rotational shifts, barriers and shutdown of areas for cleaning at every plant in the city (Ex. MET-DET-001). The winter re-tightening then reached the plant and the office together: New Jersey's Executive Order No. 192 bound every in-person worksite from 6:00 a.m. on November 5 (Ex. SEC-10-021); Oregon OSHA's rule bound every workplace from November 16 (Ex. SEC-10-054) and the Two-Week Freeze and the county tier framework followed on November 18 and December 3 (Ex. OR-033; Ex. OR-035); Washington capped offices at 25 percent and required professional services to mandate telework from November 17 (Ex. WA-047); Michigan's MDHHS prohibited every indoor non-residential gathering from November 18 (Ex. MI-060; Ex. ECO-B-076); Iowa required every employer to enable remote work where feasible from November 11 and imposed a statewide face-covering requirement from November 17 (Ex. IA-029; Ex. IA-030); Illinois' Tier 3 order directed manufacturers to "allow only manufacturing staff and key personnel in facilities, with non-production employees to work remotely where possible" and made every venue "prohibited from hosting gatherings of any size" from November 20 (Ex. SEC-10-038); Minnesota's Executive Order 20-99 closed venues and required work from home from November 20 (Ex. MN-032); Kentucky's Executive Order 2020-968 cut offices to 33 percent from November 20 to December 13 (Ex. KY-033); Pennsylvania's order of November 23, effective November 27, required that "[u]nless impossible, all businesses must conduct their operations remotely" and its travel order required a negative test or quarantine of every entrant from November 20 (Ex. PA-022; Ex. PA-021); Colorado's Level Red put Front Range offices at 10 percent from 5:00 p.m. November 20 (CO-037; Ex. CO-081); Nevada's Statewide Pause cut every venue to 25 percent or 50 persons from November 24 (Ex. NV-030); Cal/OSHA's emergency standard bound every California employer from November 30 (Ex. SEC-10-039), California's curfew from November 21 (Ex. CA-019) and its Regional Stay at Home Order, issued December 3, closed non-critical offices in the first regions from December 6 (Ex. CA-020; Ex. CA-021); New Mexico cut every non-essential in-person workforce to zero from November 16 to December 1 and placed every county at Red from December 2 (Ex. NM-039; Ex. NM-041); Massachusetts capped offices at 25 percent from December 26 (Ex. MA-040); Rhode Island required remote work from November 30 (Ex. RI-029); the District required businesses not exempted as essential to telework from December 23 (Ex. DC-015); Ohio imposed a 10:00 p.m. curfew from November 19 and a retail compliance order with a twenty-four-hour closure sanction from November 16 (Ex. OH-039; Ex. OH-037); Texas rolled every business in eighteen of twenty-two trauma service areas to 50 percent (Ex. TX-025; Ex. TX-026); North Dakota, Kansas, Utah, Montana, Wyoming, Hawaii, New Hampshire and California imposed or broadened statewide face-covering and exposure-control mandates (Ex. ND-061; Ex. KS-036; Ex. UT-029; Ex. MT-018; Ex. WY-040; Ex. HI-016; Ex. NH-031; Ex. CA-059); Maryland closed bars and restaurants nightly and capped every facility at 50 percent from November 20 (Ex. MD-021); Virginia's Executive Order 72 imposed a midnight-to-5 a.m. stay-at-home order and gatherings of ten from December 14 (Ex. VA-016); North Carolina's Modified Stay at Home Order confined every resident from 10:00 p.m. to 5:00 a.m. from December 11 (Ex. NC-023); FEMA re-extended the export bar on December 31 to June 30, 2021 (Ex. SEC-10-009); the Department of Homeland Security renewed the land-border closure monthly (Ex. FED-223; Ex. FED-224; Ex. FED-225); the federal courts re-tightened (Ex. FED-339; Ex. FED-303); the New York City subway remained closed nightly (Ex. MET-NYC-047); and the FFCRA mandate ran to its sunset on December 31. On December 31, 2020 all of these were in force.¹¹⁸

PF: MIOSHA's rules, Oregon OSHA's rule, Cal/OSHA's standard, New Jersey's Executive Order No. 192, Detroit's order, Illinois' Tier 3 order and the statewide face-covering and exposure-control mandates governed every floor in those jurisdictions (Ex. SEC-10-024; Ex. SEC-10-054; Ex. SEC-10-039; Ex. SEC-10-021; Ex. MET-DET-001; Ex. SEC-10-038). WH: the same instruments governed the dock; Washington's rule made every proclamation condition a workplace duty (Ex. AGY-ST-LABOR-WORKPLACE-050; Ex. AGY-ST-LABOR-WORKPLACE-052). SC: the export bar and the scarce-materials designation continued (Ex. SEC-10-009); the winter re-closures of Michigan, Illinois, Minnesota, California and New Mexico reached the suppliers in those States; the Federal Reserve recorded on December 2 "mandated restrictions (recent and prospective)," "more school and plant closings" and "ongoing disruptions and delays among short-staffed producers and shippers" (Ex. LAW-219). DS and CB: indoor dining closed outright in Illinois, Michigan, Minnesota, Washington, Oregon, California, New Mexico, Pennsylvania (December 12 to January 4) and the District; retail was cut to 20, 25 and 30 percent; the hospitals postponed procedures again in Indiana, Iowa, Nebraska, New Mexico and Massachusetts (Ex. IN-048; Ex. IA-030; Ex. NE-022; Ex. NM-043; Ex. MA-065). EN and OP: the telework mandates of Illinois, Michigan, New Jersey, Pennsylvania, Minnesota, Kentucky, Iowa, Washington, Oregon, Colorado, California, New Mexico, Rhode Island and the District governed the technical office in terms (Ex. SEC-10-038; Ex. MI-054; Ex. SEC-10-023; Ex. PA-022; Ex. MN-032; Ex. KY-033; Ex. IA-029; Ex. WA-047; Ex. OR-035; Ex. CO-081; Ex. CA-020; Ex. NM-039; Ex. RI-029; Ex. DC-015). EV and TR: every venue gathering was prohibited in Illinois and Michigan, capped at 25 percent or 50 persons in Nevada, closed in the Level Red counties of Colorado and the Extreme tier of Oregon, and barred in every California tier; the industry's November shows in Las Vegas and Chicago and its January show in Las Vegas ran digitally or not at all; Pennsylvania joined the travel-quarantine States (Ex. SEC-10-038; Ex. MI-060; Ex. ECO-B-076; Ex. NV-030; Ex. CO-081; Ex. OR-035; Ex. CA-055; Ex. PA-021). HR and WF: the winter school closures of Kentucky and Michigan, the remote fall in most large districts, the FFCRA mandate to December 31 and the quarantine directives of every State health department removed workers from the floor by law (Ex. KY-034; Ex. ECO-B-076; Ex. FED-170).

During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the MIOSHA emergency rules and the MDHHS epidemic orders (Ex. SEC-10-024; Ex. AGY-ST-LABOR-WORKPLACE-062; Ex. MI-054; Ex. MI-050; Ex. MI-060; Ex. MI-062), New Jersey's Executive Order No. 192 (Ex. SEC-10-021), the Oregon and California workplace standards (Ex. SEC-10-054; Ex. SEC-10-039), Illinois' Tier 3 order (Ex. SEC-10-038), the telework and office orders of Pennsylvania, Minnesota, Kentucky, Iowa, Washington, Colorado, California, New Mexico, Massachusetts, Rhode Island and the District (Ex. PA-022; Ex. MN-032; Ex. KY-033; Ex. IA-029; Ex. WA-047; Ex. CO-081; Ex. CA-020; Ex. NM-039; Ex. MA-040; Ex. RI-029; Ex. DC-015), the winter mask, curfew, gathering and capacity orders of every other State (Ex. TX-025; Ex. OH-039; Ex. MD-021; Ex. VA-016; Ex. NC-023 and the instruments in the State table), Detroit's plant order (Ex. MET-DET-001), the FEMA export bar and the land-border closure (Ex. SEC-10-009; Ex. FED-225) and the FFCRA mandate (Ex. FED-170), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of manufacturers throughout the United States. They did so by ordering non-production staff out of the plant and every technical office remote, by prescribing the floor's screening, density and coverings by regulation, by prohibiting the venue gatherings at which the industry sells, by closing its customers a second time, and by keeping its inputs under federal allocation.

The first quarter of 2021

On January 1, 2021 every winter instrument above was in force: MIOSHA's rules and the MDHHS orders (Ex. SEC-10-024; Ex. MI-062), New Jersey's Executive Order No. 192 and the telework mandate (Ex. SEC-10-021; Ex. SEC-10-023), Oregon's rule and county tiers (Ex. SEC-10-054; Ex. OR-035), Cal/OSHA's standard and the Regional Stay at Home Order (Ex. SEC-10-039; Ex. CA-020), Illinois' Tier 3 (Ex. SEC-10-038), Pennsylvania's telework and travel orders (Ex. PA-022; Ex. PA-021), Washington's Phase 1 (Ex. WA-056), Minnesota's Executive Order 20-99 successors (Ex. MN-034), Kentucky's masks and telework rule (Ex. KY-038), Colorado's Dial (Ex. CO-038; Ex. CO-039), New Mexico's Red framework (Ex. NM-047), Massachusetts' 25 percent ceiling (Ex. MA-040), the statewide face-covering and exposure-control mandates of forty jurisdictions (as compiled in Ex. LAW-232), Texas's trauma-service-area rollback (Ex. TX-026) and the land-border closure (Ex. FED-226). The federal transport layer arrived: Proclamation 10143 continued every entry suspension on January 25 (Ex. FED-207); Executive Order 13991 and M-21-15 required face coverings and distancing in every federal building and capped every federal workplace at 25 percent (Ex. FED-060; Ex. FED-270); the CDC's testing order barred every untested arriving air passenger from January 26 (Ex. FED-042); the conveyance order and the TSA directives governed every commute and flight from February 1 (Ex. FED-020; Ex. FED-050); the FRA imposed its face-covering requirement in every rail yard from March 1 (Ex. AGY-AVIATION-SURFACE-014); Virginia's permanent standard took effect January 27 (Ex. SEC-10-043); New Jersey's, Oregon's, California's and Michigan's standards continued; OSHA's National Emphasis Program listed the industry's plants on March 12 (Ex. SEC-10-014); the Department of Homeland Security renewed the land-border closure on January 19, February 23 and March 19 (Ex. FED-227; Ex. FED-228; Ex. FED-229); the export bar ran to June 30 (Ex. SEC-10-009); and Congress re-enacted the Suspension Clause on March 11 (Ex. FED-174). The step-down was as ordered as the step-up: Illinois moved its regions from Tier 3 to Phase 4 between January 15 and February 4 (Ex. IL-034); Michigan reopened indoor dining at 25 percent on February 1 under its order of January 22 (Ex. MI-064), the January 13 order having held it closed to January 31 (Ex. MI-063); Iowa dropped its mandates on February 7 (Ex. IA-035); Colorado moved to Level Orange on January 4 (Ex. CO-038); California lifted the Regional order on January 25 and returned to the Blueprint (Ex. CA-021; Ex. CA-055); Texas ended operating limits and its face-covering and exposure-control mandate on March 10 (Ex. TX-029); Mississippi, South Carolina, Arizona and Wyoming ended theirs in March (Ex. MS-051; Ex. SC-033; Ex. AZ-037; Ex. WY-050); Wisconsin's face-covering and exposure-control order fell to the Supreme Court on March 31 (Ex. WI-021). On March 31, 2021 the Virginia, Oregon and California standards, MIOSHA's rules, New Jersey's Executive Order No. 192 and telework mandate, Pennsylvania's telework mandate (to April 3), Illinois' Phase 4 caps, Michigan's MDHHS orders, Minnesota's telework rule (to April 14), Washington's Phase 3, Colorado's Dial, New Mexico's framework, Massachusetts' 40 percent caps, the face-covering and exposure-control mandates of thirty-one States, the conveyance order, the entry proclamations and the land-border closure were in force.¹¹⁹

PF and WH: the four State workplace standards and MIOSHA's rules, New Jersey's Executive Order No. 192, Detroit's order and the face-covering and exposure-control mandates of thirty-one States governed the floor and the dock; OSHA's emphasis program targeted the plants for inspection (Ex. SEC-10-043; Ex. SEC-10-054; Ex. SEC-10-039; Ex. SEC-10-024; Ex. SEC-10-021; Ex. SEC-10-014). SC: the export bar and the scarce-materials designation continued (Ex. SEC-10-009; Ex. ECO-A-070); the Federal Reserve recorded on January 13 "the recent surge in COVID-19 cases and stricter containment measures" and "increasing reports of supply chain challenges" (Ex. LAW-249); the President found the supply chains fragile on February 24 (Ex. ECO-A-072). DS and CB: the winter closures of the industry's customers ran to their step-down dates. EN and OP: the telework mandates of New Jersey, Pennsylvania, Michigan, Minnesota, Oregon, Washington, Colorado and California governed the technical office to their end dates inside or after the quarter (Ex. SEC-10-023; Ex. PA-022; Ex. MI-054; Ex. MN-037; Ex. OR-035; Ex. WA-047; Ex. CO-081; Ex. CA-055). EV and TR: the venue caps closed the January show in Las Vegas and every other show; the conveyance order, the testing order and the entry proclamations governed every flight; the travel quarantines of New York, Connecticut, Massachusetts and Pennsylvania ran to March and April (Ex. NV-030; Ex. FED-020; Ex. FED-042; Ex. FED-207; Ex. NY-006; Ex. CT-023; Ex. MA-025; Ex. PA-021). HR: the motor-vehicle offices ran by appointment; Illinois closed its Driver Services facilities again from November 17 to January 5 (Ex. IL-056); the consulates ran post by post; USCIS ran at reduced capacity; the H-1B and H-2B suspensions ran to March 31 (Ex. FED-213). WF: the schools ran remote and hybrid to the spring, every commute by transit ran under a federal face-covering and exposure-control order from February 1, and the State quarantine directives excluded exposed workers.

During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the winter orders of every re-tightening jurisdiction in force on January 1 (Ex. SEC-10-024; Ex. MI-062; Ex. SEC-10-021; Ex. SEC-10-038; Ex. PA-022; Ex. OR-035; Ex. CA-020; Ex. WA-056; Ex. CO-038; Ex. NM-047; Ex. MA-040 and the instruments in the State table), the State workplace standards (Ex. SEC-10-043; Ex. SEC-10-054; Ex. SEC-10-039), the federal conveyance, testing, building and entry orders (Ex. FED-020; Ex. FED-042; Ex. FED-060; Ex. FED-207), the land-border closure (Ex. FED-229), the FEMA export bar (Ex. SEC-10-009), OSHA's emphasis program (Ex. SEC-10-014) and the school, transit and quarantine orders, caused a temporary delay, interruption or termination of a more than nominal portion of the operations of manufacturers throughout the United States. They did so by keeping the technical office remote and the floor under regulation, by closing the venues and conditioning every flight, and by keeping the borders closed to the industry's engineers, customers and inputs.

The second quarter of 2021

On April 1, 2021 the Virginia, Oregon and California standards (Ex. SEC-10-043; Ex. SEC-10-054; Ex. SEC-10-039), MIOSHA's rules (Ex. SEC-10-024), New Jersey's Executive Order No. 192 and telework mandate (Ex. SEC-10-021; Ex. SEC-10-023), Pennsylvania's telework mandate (to April 3) and face-covering and exposure-control order (Ex. PA-022; Ex. PA-020), Minnesota's telework rule (to April 14) and Preparedness Plan requirement (Ex. MN-037; Ex. MN-038), Illinois' Phase 4 caps (Ex. IL-034), Michigan's MDHHS orders (Ex. MI-066), Washington's Phase 3 (Ex. WA-064), Colorado's Dial (Ex. CO-057), New Mexico's framework (Ex. NM-054), Nevada's 50 percent caps (Ex. NV-032), Massachusetts' 40 percent caps (Ex. MA-043), Connecticut's sector rules (Ex. CT-036), Delaware's 50 percent caps and universal masks (Ex. DE-034), Maryland's venue caps (Ex. MD-026), Kentucky's Healthy at Work requirements (Ex. KY-018), Hawaii's proclamations (Ex. HI-019), the statewide face-covering and exposure-control mandates of thirty-one States (as compiled in Ex. LAW-233), the conveyance order, the entry proclamations, the land-border closure and the export bar were in force. Inside the quarter: MIOSHA extended its rules on April 13 through October 14, 2021 (Ex. SEC-10-024); Oregon made its rule permanent on May 4 "until revised or repealed" (Ex. SEC-10-055); New York enacted the HERO Act on May 5, effective June 4 (Ex. SEC-10-029); Proclamation 10199 added India to the entry suspensions from May 4 (Ex. FED-208); TSA extended its surface directive to September 13 "including those already vaccinated" (Ex. FED-051); the Department of Transportation fixed the airline network at federal minimums to September 30 (Ex. AGY-AVIATION-SURFACE-035); Cal/OSHA readopted its standard on June 17 (Ex. SEC-10-041); OSHA's Healthcare ETS bound the industry's health-care customers from June 21 (Ex. FED-080); the Department of Homeland Security renewed the land-border prohibition on April 22, May 24 and June 23 (Ex. FED-230; Ex. FED-231; Ex. FED-232); the White House found the "global semiconductor chip shortage" on June 8 (Ex. ECO-A-101). The general regimes ended by order on stepped dates: Indiana April 6 (Ex. IN-059); Alabama April 9 (Ex. AL-048); Utah April 10 and May 4 (Ex. UT-040; Ex. UT-043); Colorado April 16 (Ex. CO-051); West Virginia April 20 (Ex. WV-063); Nevada April 30 and June 1 (Ex. NV-038; Ex. NV-074); North Carolina May 14 (Ex. NC-029); Maryland May 15 (Ex. MD-030); New York May 19 and June 15 (Ex. NY-054; Ex. NY-057); Connecticut May 20 (Ex. CT-046); Delaware May 21 (Ex. DE-038); Maine May 24 (Ex. ME-057); Louisiana May 26 (Ex. LA-032); Minnesota May 27 (Ex. MN-038); New Jersey May 28 and June 4 (Ex. NJ-050; Ex. SEC-10-022); Massachusetts May 29 (Ex. MA-048); Pennsylvania May 31 and June 28 (Ex. PA-035; Ex. PA-100); Ohio June 2 (Ex. OH-048); Illinois June 11 (Ex. IL-037); Kentucky June 11 (Ex. KY-049); Vermont June 14 (Ex. VT-043); California June 15 (Ex. CA-027); Michigan June 22 (Ex. MI-076); Washington, Oregon and Minnesota's plan requirement June 30 (Ex. WA-065; Ex. OR-043; Ex. MN-038); the FEMA export bar June 30 (Ex. SEC-10-009). On June 30, 2021 the Virginia, Oregon and California standards, New York's HERO Act, New Jersey's Executive Order No. 242 carrying the worksite rules for unvaccinated and unverified employees (Ex. NJ-050), Rhode Island's face-covering and exposure-control order (Ex. RI-044; Ex. RI-046), Hawaii's Twenty-First Proclamation (Ex. HI-023), New Mexico's framework (to July 1) (Ex. NM-057), Washington's and Minnesota's requirements (to 11:59 p.m.), the conveyance order and TSA directive, the entry proclamations, the land-border prohibition, the Healthcare ETS and the National Emphasis Program were in force.¹²⁰

PF and WH: the four standards and New Jersey's worksite rules governed the floor and the dock; MIOSHA's rules governed every Michigan plant to June 22; the face-covering and exposure-control mandates of thirty-one States governed the floor on April 1 and of ten on June 28 (Ex. SEC-10-043; Ex. SEC-10-055; Ex. SEC-10-041; Ex. SEC-10-024; Ex. NJ-050; as compiled in Ex. LAW-233). SC: the export bar ran to the quarter's last day; India joined the entry suspensions; the land border stayed closed; the chip shortage the United States itself found constrained every plant that uses a controller (Ex. SEC-10-009; Ex. FED-208; Ex. FED-232; Ex. ECO-A-101). DS and CB: the customers reopened on the stepped dates above, none earlier than April 6 and most in late May and June. EN and OP: New Jersey's telework mandate ran to June 4, Pennsylvania's to April 3, Minnesota's to April 14, Michigan's MIOSHA remote-work rule to May 24 and Oregon's office prohibition in the highest tier to May 6 (Ex. SEC-10-022; Ex. PA-033; Ex. MN-037; Ex. AGY-ST-LABOR-WORKPLACE-063; Ex. OR-035). EV and TR: Nevada ended its caps on June 1 and the first show in Las Vegas since March 2020 opened in June; Illinois' Bridge Phase ran to June 11 and McCormick Place reopened in July; California barred conventions to June 15; the conveyance order, testing order and entry proclamations governed every flight (Ex. NV-074; Ex. IL-037; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-027; Ex. CA-027; Ex. FED-020). HR and WF: the school-year rules ran to June; the quarantine directives and the standards' exclusion rules removed exposed workers; the paid-leave mandates of New York, New Jersey, Colorado, Massachusetts and California required employers to pay quarantined and exposed employees not to work (Ex. AGY-ST-LABOR-WORKPLACE-003; Ex. AGY-ST-LABOR-WORKPLACE-005; Ex. AGY-ST-LABOR-WORKPLACE-004; Ex. AGY-ST-LABOR-WORKPLACE-009).

During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the winter orders in force on April 1 through their stepped expiry between April 3 and June 30, 2021 (Ex. SEC-10-024; Ex. SEC-10-021; Ex. SEC-10-023; Ex. PA-022; Ex. MN-037; Ex. IL-034; Ex. MI-066; Ex. WA-064; Ex. CO-057; Ex. NM-054; Ex. NV-032; Ex. MA-043 and the instruments in the State table), the State workplace standards and the HERO Act (Ex. SEC-10-043; Ex. SEC-10-055; Ex. SEC-10-041; Ex. SEC-10-029), the federal conveyance, testing, entry and border orders (Ex. FED-020; Ex. FED-051; Ex. FED-042; Ex. FED-207; Ex. FED-208; Ex. FED-232), the FEMA export bar to June 30 (Ex. SEC-10-009) and the face-covering and exposure-control mandates of thirty-one States on April 1 (as compiled in Ex. LAW-233), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of manufacturers throughout the United States. They did so by holding the floor under regulation and the office remote into the quarter, by releasing the industry's customers and venues only in its last weeks, and by keeping the borders, the flights and the commute under federal order on every day.

The third quarter of 2021

Between July 1 and September 30, 2021, the operation of the manufacturing 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 the production floors of California, Oregon and Virginia by regulation, the borders across which the industry's inputs, customers and engineers move, every commute by transit and every business flight, every plant that touches a port or a rail yard, the federal premises and contracts the industry sells into, and the hospitals, schools and courts on which its workforce and its transactions depend; orders issued inside the quarter activated the exposure-prevention plans of every private employer in New York, renewed the universal face-covering requirement of Oregon's workplace rule, amended Virginia's standard, imposed face-covering and exposure-control requirements in every indoor space in Washington, Illinois, Nevada, Louisiana, New Mexico and the District of Columbia and in Los Angeles, the Bay Area, Sacramento, St. Louis, Kansas City, New Orleans, Chicago, Philadelphia, Baltimore, Boston, Charlotte, Columbus and the Maryland suburbs, and placed the workforce's children under face-covering and quarantine orders in eighteen States and the District. This section is written to be read alone.

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

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.

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)."¹²² Congress enacted that clause for this quarter on March 11, 2021, five weeks after the federal conveyance order took effect and one day before OSHA named the industry's plants in its emphasis program, and on November 15, 2021 it terminated the following quarter and left this one in place.¹²³ The Notice's rules carry into the quarter by Notice 2021-49: a workplace closed "for certain purposes, but not others" is partially suspended, 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," a manufacturer whose supplier is suspended by order is suspended "due to the governmental order that suspended operations of its supplier," and an employer suspended "during a portion of a calendar quarter is an eligible employer for the entire calendar quarter."¹²⁴

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

B-1. The federal conveyance order and its directives (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: the order effective 11:59 p.m. February 1, 2021 "until further notice"; Security Directive 1582/84-21-01A effective May 12 to September 13, 2021 and -01B effective September 14, 2021 to January 18, 2022; the aviation directives ratified at 86 Fed. Reg. 26825. Operative clause: "Persons must wear masks over the mouth and nose when traveling on conveyances into and within the United States"; "A conveyance operator transporting persons into and within the United States must require all persons onboard to wear masks for the duration of travel"; every operator to give notice that "Federal law requires wearing a mask," to refuse boarding and to remove violators, "including those already vaccinated." Enforcement: criminal penalties under 18 U.S.C. §§ 3559 and 3571 and 42 U.S.C. § 271; civil penalties under the TSA directives. Status: in force July 1 and September 30, 2021. Functions: WF (every employee who commuted by bus, rail, ferry or ride-share), TR and EV (every business flight and every technician's trip), CB (every traveling customer).¹²⁵

B-2. The entry proclamations (Ex. FED-200; Ex. FED-201; Ex. FED-207; Ex. FED-208; revoked effective November 8, 2021 by Proclamation 10294, Ex. FED-209, post-period)

Issuer: the President under 8 U.S.C. § 1182(f). Dates and operative clause: Proclamation 10143 of January 25, 2021 provided that "[t]he entry into the United States, as immigrants or nonimmigrants, of noncitizens who were physically present within the Schengen Area, the United Kingdom ..., the Republic of Ireland, and the Federative Republic of Brazil during the 14-day period preceding their entry or attempted entry into the United States, is hereby suspended," and added South Africa; Proclamation 10199 added India from May 4, 2021; Proclamations 9984 (China) and 9992 (Iran) ran from February 2 and March 2, 2020; Proclamation 10294 revoked all of them effective 12:01 a.m. November 8, 2021, fixing the end date from the United States' own hand (Ex. FED-209, post-period, cited only for the end date). Enforcement: exclusion at the port of entry. Status: in force July 1 and September 30. Functions: SC (supplier engineers, quality and installation personnel from Europe, Britain, India, China and Brazil barred), EV and TR (foreign exhibitors, attendees and customers barred; international travel conditioned), HR (foreign hires and intracompany transfers barred), CB (foreign buyers barred).¹²⁶

B-3. The land-border prohibitions (Ex. FED-232; Ex. FED-233; Ex. FED-234; Ex. FED-235; Ex. FED-255; Ex. FED-256; Ex. FED-257; Ex. FED-258)

Issuer: the Secretary of Homeland Security under 19 U.S.C. § 1318(b)(1). Dates: the June 23, 2021 notifications "in effect at 12 a.m. Eastern Daylight Time (EDT) on June 22, 2021 and ... until 11:59 p.m. EDT on July 21, 2021"; the July 22 notifications to August 21; the August 23 notifications to September 21; the September 22 notifications to October 21, 2021; the October 21, 2021 notifications admitting fully vaccinated non-essential travelers from November 8, 2021 and reciting the chain (Ex. FED-236; Ex. FED-259, each post-period and cited only for the recital). Operative clause: non-essential travel across the Canadian and Mexican land borders prohibited, "sightseeing, recreation, gambling, or attending cultural events" named as the travel forbidden. Enforcement: refusal of entry by Customs and Border Protection. Status: in force July 1 and September 30, without a day's interruption. Functions: SC (cross-border crews, inspectors and technicians of the Canadian and Mexican tier plants), DS and CB (Canadian and Mexican customers), EV and TR (every cross-border customer visit and field-service trip not certified essential).¹²⁷

B-4. The pre-departure testing order and the Title 42 orders (Ex. FED-042; Ex. FED-037; Ex. FED-038)

Issuer: the CDC under 42 U.S.C. §§ 264 and 265. Dates: the amended testing order effective January 26, 2021 to June 12, 2022; the Title 42 order of October 13, 2020 to August 1, 2021, replaced August 2, 2021 without interruption by the reassessment order finding the suspension "appropriate at this time for all covered noncitizens." Operative clause: "This Order prohibits the introduction into the United States of any aircraft passenger departing from any foreign country unless the passenger" has a negative test or documentation of recovery; airlines to refuse boarding. Status: in force July 1 and September 30. Functions: TR and EV (every returning engineer, salesperson and technician), SC and CB.¹²⁸

B-5. The Defense Production Act delegations and the scarce-materials designation (Ex. SEC-10-001; Ex. SEC-10-002; Ex. SEC-10-003; Ex. SEC-10-005; Ex. ECO-A-070; Ex. ECO-A-071)

Issuer: the President under 50 U.S.C. § 4511; the Secretary of Health and Human Services under 50 U.S.C. § 4512. Dates: Executive Orders 13909, 13910, 13911 and 13917 never revoked in the period; the scarce-materials designation extended February 1, 2021 and July 7, 2021 to November 15, 2021. Operative clause: priority and allocation authority over "all health and medical resources"; accumulation of the designated respirators, masks, gloves, gowns, ventilators and disinfectants above reasonable demand a federal crime. Status: in force July 1 and September 30. Functions: SC (every manufacturer that bought the protective equipment its State standard required bought it in a market under federal allocation; every manufacturer of the designated goods sold under federal priority).¹²⁹

B-6. The OSHA National Emphasis Program and the Healthcare Emergency Temporary Standard (Ex. SEC-10-014; Ex. SEC-10-015; Ex. FED-080; Ex. FED-081)

Issuer: the Occupational Safety and Health Administration under 29 U.S.C. §§ 655(c) 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, published and effective June 21, 2021 with compliance dates of July 6 and July 21, 2021, in force to December 27, 2021. Operative text: the emphasis program's targeted-industry appendices list meat and poultry processing and beverage, petroleum, wood-products and miscellaneous manufacturing; the program "targets establishments that have workers with increased potential exposure to this hazard"; the Healthcare ETS applies "to all settings where any employee provides healthcare services or healthcare support services," with entry limits, screening, distancing, barriers, ventilation, paid medical removal and paid vaccination leave. Enforcement: programmed inspections and citations under the general duty clause and the existing standards; the ETS by citation and penalty. Status: in force July 1 and September 30. Functions: PF and HR (every targeted plant), CB and DS (every hospital, clinic and nursing home that buys the industry's devices, equipment and supplies operated under the ETS), WF (every worker's provider).¹³⁰

B-7. The federal workplace, contractor and travel rules (Ex. FED-060; Ex. FED-270; Ex. FED-271; Ex. FED-272; Ex. FED-278; Ex. FED-280; Ex. FED-063; Ex. FED-064; Ex. FED-275; Ex. AGY-AVIATION-SURFACE-040)

Issuer: the President; the Office of Management and Budget; the Safer Federal Workforce Task Force; the Department of Defense; the Department of Transportation. Dates and operative clauses: Executive Order 13991 masked and distanced every person "in Federal buildings or on Federal lands" from January 20, 2021; M-21-15's non-occupancy provisions (masks, distancing, visitors minimized, mission-critical travel only) and M-21-25's reentry-plan and thirty-day-notice rules ran the whole quarter; the Task Force's revised Model Safety Principles of July 29, 2021 required masks for all persons regardless of vaccination status in areas of substantial or high transmission, required that "employees and onsite contractors must sign an attestation confirming their vaccination status," that "[v]isitors must provide information on their vaccination status," and that any federally hosted "in-person meeting, conference, or event that will be attended by more than 50 participants" first obtain agency-head approval; the Department of Defense's memorandum of March 15, 2021 kept travel restrictions in force "until further notice"; the Department of Transportation's Acquisition Directive 2021-02 required every on-site contractor employee at its facilities to attest to vaccination or be tested from September 17, 2021; Executive Orders 14042 and 14043 of September 9, 2021 recited that the public health emergency and the national emergency remained in effect and directed the contractor clauses that took effect October 15, 2021, and OMB's determination of September 28, 2021 found that compliance "will improve economy and efficiency by reducing absenteeism and decreasing labor costs for contractors and subcontractors." Status: Executive Order 13991, M-21-15's non-occupancy provisions, M-21-25 and the DoD memorandum in force July 1 and September 30; the Task Force rules from July 29; the DOT directive from September 17; Executive Orders 14042 and 14043 issued inside the quarter with private effect only from October 15, 2021, cited here as federal statements of the emergency made inside the quarter and not as third-quarter obligations. Functions: DS and CB (every manufacturer that sells to a federal agency, ships to a federal installation or sends a technician onto federal premises), EV (every federally hosted meeting over fifty), HR (every on-site contractor employee).¹³¹

B-8. The maritime, rail and port instruments (Ex. AGY-AVIATION-SURFACE-014; Ex. AGY-AVIATION-SURFACE-035; Ex. FED-020 as applied at sea ports by the Coast Guard's bulletins, Ex. AGY-USCG-PORTS-037; Ex. AGY-USCG-PORTS-038; the Coast Guard's vessel guidance, Ex. AGY-USCG-PORTS-035; Ex. AGY-USCG-PORTS-034; Ex. AGY-USCG-PORTS-032)

Issuer: the Federal Railroad Administration under 49 U.S.C. § 20104; the Department of Transportation under ARPA § 7301; the Centers for Disease Control and Prevention under 42 U.S.C. § 264, whose conveyance order the Coast Guard applied at the ports. Dates and operative clauses: FRA Emergency Order No. 32 provided that "Railroad carriers must require their personnel to wear a mask ... while engaged in railroad operations," in every "railroad transportation facility, terminal, yard, storage facility, yard office, crew room, maintenance shop," on pain of "civil penalty of up to $118,826 for each day the violation continues"; DOT Order 2021-4-13 fixed the national airline network at federal minimums "through September 30, 2021"; the CDC conveyance order (B-1) is the order whose face-covering requirement, one of its airborne-transmission controls, reached the sea ports, and the Coast Guard's Marine Safety Information Bulletins MSIB 02-21 Change 2 (June 11, 2021) and Change 3 (September 2, 2021) are the Coast Guard's guidance applying it to "sea ports (e.g., passenger terminals, cargo handling facilities, and other shoreside facilities that provide transportation of persons or cargo)," stating that operators "must" require masks of every person entering and that vessels not complying "may be issued a Captain of the Port (COTP) order directing the vessel's movement and operations." The Coast Guard's other bulletins of the quarter, MSIB 02-20 Change 7 (May 5, 2021) on the reporting and infection-control measures expected of every vessel "arriving to or traveling between any U.S. port or place" and on crews from listed countries remaining aboard, MSIB 13-20 Change 3 on credentials and MSIB 04-21 on crew changes, are the agency's guidance to the maritime industry and are described here as such; this analysis relies on them as the context in which the ports operated and not as orders. Enforcement: the FRA order by civil penalty; the DOT order as a condition of federal assistance; the conveyance order by the criminal penalties stated in B-1 and, at the ports, by the Captain of the Port's order power the bulletins recite. Status: the FRA order, the DOT order (expiring at the end of the quarter's last day) and the conveyance order in force July 1 and September 30. Functions: WH and SC (every containerized input and export; every rail-served plant; every trucker at every port gate), TR (every business flight on a network fixed by federal order).¹³²

B-9. The State workplace standards in force on every day (Ex. SEC-10-041; Ex. SEC-10-055; Ex. SEC-10-056; Ex. SEC-10-057; Ex. SEC-10-043)

Issuer: the California Occupational Safety and Health Standards Board under Labor Code §§ 142.3 and 144.6; Oregon OSHA under ORS 654.025 and 656.726; the Virginia Safety and Health Codes Board under Va. Code § 40.1-22(6a). Dates and operative clauses: Cal/OSHA's 8 C.C.R. §§ 3205-3205.4, readopted June 17, 2021 and in force to January 14, 2022, required of every employer a written COVID-19 Prevention Program, exclusion of cases and exposed employees with pay, testing, face coverings and distancing; Oregon's OAR 437-001-0744, permanent from May 4, 2021 to "remain in effect until revised or repealed," amended June 30, 2021 by Administrative Order 5-2021 (Ex. OR-044) to suspend its general distancing and face-covering provisions while keeping the exposure-assessment, infection-control-plan, ventilation, notification, training and sanitation duties on every employer, "applies to all employees working in places of employment" and required exposure assessment, an infection-control plan, ventilation and notification, and Administrative Order 10-2021 of August 13, 2021 renewed universal workplace masking while Administrative Order 12-2021 of September 14, 2021, effective September 16, added medical-removal benefits and enforcement of the Health Authority's face-covering rules; Virginia's 16VAC25-220, the Final Permanent Standard, "shall apply to every employer, employee, and place of employment" under VOSH jurisdiction, required exposure classification of every job task, § 40 mandatory requirements for all employers (screening, notification within twenty-four hours, return-to-work rules, distancing, face coverings where distancing is not maintained, sanitation), § 70 plans and § 80 training for very-high, high and medium exposure workplaces, which is most production floors, and was amended effective September 8, 2021. Enforcement: citation and civil penalty under Labor Code §§ 6308 and 6317, ORS 654.071 and 654.086 and Va. Code § 40.1-49.4. Status: in force July 1 and September 30 in all three States; the Oregon masking and medical-removal orders from August 13 and September 16; the Virginia amendment from September 8. Functions: PF, WH, EN, HR, WF.¹³³

B-10. The New York HERO Act plans (Ex. SEC-10-029; Ex. SEC-10-028; Ex. SEC-10-031)

Issuer: the New York Legislature (Labor Law § 218-b, L. 2021, ch. 105, as amended by ch. 145); the Commissioner of Labor (12 NYCRR part 840); the Commissioner of Health. Dates and operative clause: the statute effective June 4, 2021; the Department of Labor's Airborne Infectious Disease Exposure Prevention Standard and model plans published July 6, 2021, with every private employer in the State required to adopt a plan by August 5, 2021; the Commissioner of Health's designation of COVID-19 as a highly contagious communicable disease on September 6, 2021 activated every plan, requiring daily health screening, face coverings where distancing cannot be kept, distancing, hygiene stations, cleaning and controls, and the designation was continued on September 30, 2021. Enforcement: civil penalties and a private right of action under § 218-b. Status: the statute and the adoption duty in force July 1; the activated plans in force from September 6 through September 30. Functions: PF, WH, EN, HR, WF.¹³⁴

B-11. The statewide face-covering and exposure-control orders issued or in force in the quarter (Ex. WA-078; Ex. WA-080; Ex. SEC-10-036; Ex. IL-043; Ex. NV-041; Ex. NV-042; Ex. HI-023; Ex. HI-024; Ex. LA-036; Ex. LA-038; Ex. LA-040; Ex. NM-067; Ex. NM-070; Ex. OR-048; Ex. DC-057; Ex. DC-077; Ex. RI-044; Ex. RI-046; Ex. CA-029; Ex. CA-035; Ex. CT-050)

Each order below imposed face coverings as one of the airborne-transmission controls on every indoor workplace in the jurisdiction; where the same instrument also placed the operator under a duty to enforce, to screen or to verify vaccination, the text says so. Washington's Secretary of Health Order 20-03.4, issued August 19 and effective August 23, 2021, required face coverings of every person "regardless of their vaccination status, when in a place where any person from outside their household is present or in a public place," and Proclamation 20-25.15 prohibited every business from admitting an unmasked person, with Orders 20-03.5 (September 13) and 20-03.6 (September 24) reaching outdoor events of 500 (as recited in Order 20-03.7 of February 16, 2022, Ex. SEC-10-070, post-period); Illinois' Executive Order 2021-20 provided that "[b]eginning on Monday, August 30, 2021, all individuals in Illinois who are age two or over ... shall be required to cover their nose and mouth with a face covering when in an indoor public place," and Executive Order 2021-22 of September 3 added the employer's duty to enforce masking on staff; Nevada's Directive 047, issued July 27 and effective 12:01 a.m. July 30, 2021, required face coverings of every person indoors in every substantial- or high-transmission county (sixteen of seventeen by August 24, Clark and Washoe throughout), and Directive 048 of August 4 defined "indoor public setting" to include "office buildings, breakrooms, hallways, cafeterias, meeting rooms"; Hawaii's Twenty-First Proclamation and its Emergency Proclamation of August 5, 2021 kept the Statewide Face Covering Requirement and Safe Travels in force on every day, and Executive Order 21-05 of August 10 capped every indoor gathering at ten; Louisiana's Proclamation 137 JBE 2021, effective August 4, 2021 and renewed on September 1 and September 29 to October 27, required indoor face coverings of every person aged five and older in every place outside a private residence; New Mexico's Public Health Order of June 30, 2021, effective July 1, made the COVID-Safe Practices mandatory for "all businesses, establishments, and non-profit entities" under a $5,000 penalty and required face coverings of the unvaccinated, and its order of August 17 reinstated universal indoor face-covering requirements from August 20; Oregon's OAR 333-019-1025, effective August 13, 2021, provided that "[i]ndividuals, regardless of vaccination status, are required to wear a mask, face covering or face shield ... when in an indoor space," including "public and private workplaces" and "factories," with the operator's duty to "ensure employees, contractors, and volunteers comply," enforced by civil penalties up to $500 a day; the District's Mayor's Order 2021-097, effective 5:00 a.m. July 31, 2021, provided that "[a]ll persons must wear masks indoors as prescribed by DC Health guidance and regulations," with $1,000 fines; Rhode Island's Executive Order 21-69, masking unvaccinated persons indoors and every person on transit, ran to July 6, 2021 (Ex. RI-044; Ex. RI-046); California's State Public Health Officer order of June 11, 2021 made the Department's face-covering guidance mandatory by incorporation, required masks of unvaccinated persons in indoor public settings and workplaces and put every business to the choice of self-attestation, vaccine verification or universal face coverings, with the July 28, 2021 guidance in force to the quarter's end; Connecticut's Executive Order 13A of August 5 required masks of unvaccinated persons indoors and authorized municipal universal mandates. Enforcement: misdemeanor, civil penalty or license sanction under each State's emergency statute. Status: Hawaii, New Mexico, California and Rhode Island (to July 6) in force July 1, and Oregon from August 13 (Ex. OR-048; Ex. SEC-10-056); Washington, Illinois, Nevada, Louisiana, New Mexico (universal), Oregon, the District, Hawaii, California and Connecticut in force September 30. Functions: PF, WH, EN, EV, WF.¹³⁵

B-12. The metro instruments (Ex. MET-LA-018; Ex. MET-LA-019; Ex. MET-SFO-071; Ex. MET-SFO-010; Ex. MET-SAC-015; Ex. MET-STL-021; Ex. MET-STL-069; Ex. MET-KC-002; Ex. MET-KC-045; Ex. MET-MSY-027; Ex. MET-MSY-063; Ex. MET-CHI-026; Ex. MET-CHI-041; Ex. MET-PHL-019; Ex. MET-BAL-017; Ex. MET-DCM-023; Ex. MET-DCM-128 (its terms recited in Executive Order No. 22-2021 of October 4, 2021, Ex. MET-DCM-047, post-period); Ex. MET-BOS-013; Ex. MET-CLT-001; Ex. MET-CMH-050; Ex. MET-LAS-006; Ex. MET-DFW-028; Ex. MET-HOU-038; Ex. MET-NYC-017; Ex. MET-HNL-035; Ex. MET-DET-013; Ex. MET-DET-015; Ex. MET-SEA-002; Ex. MET-ATL-063)

Issuer: county health officers, boards of health, mayors and county executives under the State delegations recited in each order. Each order below imposed a face-covering requirement as one of the airborne-transmission controls on every indoor workplace in the jurisdiction; where it also compelled employer enforcement, screening or proof of vaccination, the text says so. Dates and operative clauses: Los Angeles County reinstated universal indoor face-covering and exposure-control requirements from 11:59 p.m. July 17, 2021 ("this Order reinstates masking by all, regardless of vaccination status"), with Long Beach the same day, Pasadena from July 22 and the City from July 17; the eight Bay Area jurisdictions imposed face-covering and exposure-control requirements in every indoor space from August 3; Sacramento County imposed face-covering and exposure-control requirements in every indoor space with employer enforcement from July 30; St. Louis City from 12:01 a.m. July 26 and St. Louis County from 8:00 a.m. July 26 (the County's order issued and posted throughout, its enforcement barred from August 3); Kansas City from August 2 and Jackson County from August 9, each extended under RSMo § 67.265; New Orleans imposed face-covering and exposure-control requirements in every indoor space from July 31 and conditioned entry to covered venues on vaccination or a negative test from August 16, and Jefferson Parish imposed face-covering and exposure-control requirements in every indoor space outside a private residence from August 4; Chicago from August 20 and Cook County from August 23; Philadelphia from August 12; Baltimore City from August 9; Montgomery County from August 7 and Prince George's County from 5:00 p.m. August 8 (Executive Order No. 18-2021, issued August 5); Boston from 8:00 a.m. August 27, with Somerville from August 20, Brookline from August 27 and Cambridge from September 3; Charlotte and unincorporated Mecklenburg from August 18 and all of Mecklenburg by Board of Health rule from August 31; Columbus from 8:00 a.m. September 14, reaching "manufacturing, construction and agricultural workplaces where distancing is difficult"; Clark County, Nevada required face coverings of every employee of every business in indoor public spaces from 12:00 a.m. July 22; Dallas County masked commercial entities from 11:59 p.m. August 11, with $1,000 fines from August 14; Harris County imposed face-covering requirements in every school and licensed child-care setting from August 12; New York City barred every covered entity from admitting a patron, employee or contractor without proof of vaccination from August 17, with penalties from September 13; Honolulu's Safe Access O'ahu conditioned entry to covered entities on proof of vaccination or a negative test from September 13 and its Executive Order 2021-10 capped gatherings at ten indoors from August 23; Oakland and Wayne Counties imposed face-covering requirements in every school and day care from August 24 and 27; King County imposed face-covering and exposure-control requirements in every indoor space from September 7; Atlanta from July 28. Enforcement: misdemeanor, civil penalty or license sanction under each county code. Status: each in force on September 30 from its stated date; the Los Angeles, Clark County, St. Louis, Sacramento and New Orleans orders in force from July. Functions: PF, WH, EN, EV, WF.¹³⁶

B-13. The preemption-State instruments (Ex. TX-036; Ex. TX-032; Ex. TX-038; Ex. TX-040; Ex. TX-041; Ex. TX-053; Ex. FL-030; Ex. FL-063; Ex. GA-041; Ex. GA-043; Ex. AZ-044; Ex. MT-072; Ex. IA-039; Ex. IA-056; Ex. KS-057; Ex. UT-025; Ex. UT-051; Ex. SC-045; Ex. AR-017; Ex. AR-073; Ex. WY-055; Ex. TN-035)

Texas's GA-38 of July 29, 2021 re-imposed, with force of law under Tex. Gov't Code § 418.012, daily reporting by "[e]very public or private entity" that tests, vaccination-proof prohibitions and the Texas Education Agency's school protocols; SB 968 bound every business's dealings with customers as a permit condition; the disaster declaration was renewed monthly, including August 29, 2021; the Supreme Court of Texas's Fortieth Emergency Order governed every proceeding and eviction "effective August 1, 2021, and expires October 1, 2021," and its Thirty-Ninth Emergency Order, Misc. Docket No. 21-9078 (July 19, 2021), kept the Texas Eviction Diversion Program's procedures in force through the quarter (Ex. TX-041). Florida's section 381.00316 provided from July 1, 2021 that "A business entity ... may not require patrons or customers to provide any documentation certifying COVID-19 vaccination," with a $5,000 penalty per violation, and Executive Order 21-175 and the Department of Health's rules governed every school. Georgia's Economic Recovery emergency of June 30, 2021 recited "an ongoing emergency due to the impacts of COVID-19 on the economy, supply chain, and healthcare infrastructure" (Ex. GA-041, cited as the predicate under which Executive Order 08.19.21.03 issued), and Executive Order 08.19.21.03 re-imposed a mitigation duty on every in-person organization from August 19 (Ex. GA-043). Arizona's Executive Order 2021-16 kept six executive orders in force to September 29, 2021. Montana's section 49-2-312 barred every employer from conditioning employment on vaccination status. Iowa's proclamations recited that strict compliance with Iowa law "would continue to prevent, hinder, or delay necessary action," and its Supreme Court's statewide face-covering and exposure-control order of August 27 required face coverings in every courthouse "regardless of a person's vaccination status ... statewide." Kansas's KDHE quarantine list bound unvaccinated travelers and close contacts to November 2021. Utah's Department of Health emergency and the Judicial Council's courthouse face-covering and exposure-control mandate of July 30 governed. South Carolina's Provisos and its Supreme Court's Delta extension of July 30 governed. Arkansas's Executive Order 21-14 declared an emergency for the "catastrophic statewide impact of the Delta Variant" from July 29 to September 27, 2021 (Ex. AR-017, cited as the predicate of the quarantine directive (Ex. AR-073), which is the order relied on), and its fourteen-day close-contact quarantine directive ran throughout. Wyoming's HEA 93 governed every new health order from July 1, 2021. Tennessee's Executive Order 83 of August 6, 2021 reinstated the health-care emergency because "hospitalizations are increasing." Enforcement: fine up to $1,000 and confinement up to 180 days under Tex. Gov't Code § 418.173 (GA-38); $5,000 per violation under Fla. Stat. § 381.00316; misdemeanor or civil penalty under each State's emergency statute for the remaining instruments; the court orders by contempt. Status: each in force on the dates stated; on September 30 the Texas, Florida, Georgia, Montana, Iowa, Kansas, Utah, South Carolina, Tennessee and Wyoming instruments and Arkansas's quarantine directive (Ex. AR-073) were in force; Arizona's Executive Order 2021-16 carried the six orders it named to September 29, 2021 (Ex. AZ-044) and Arkansas's Executive Order 21-14 ran to September 27, 2021 (Ex. AR-017), each relied on for the days it ran. Functions: DS and CB (every business's dealings with customers regulated by statute), WF, HR, OP.¹³⁷

B-14. The counterparty and workforce orders (Ex. ECO-B-083; Ex. ECO-B-055; Ex. ECO-B-030; Ex. ECO-B-037; Ex. ECO-B-080; Ex. ECO-B-052; Ex. ECO-B-029; Ex. ECO-B-054; Ex. ECO-B-036; Ex. ECO-B-087; Ex. ECO-B-066; Ex. ECO-B-051; Ex. FED-156; Ex. FED-092; Ex. FED-094; Ex. ECO-C-070; Ex. FED-364; Ex. FED-379; Ex. FED-344; Ex. FED-025; Ex. FED-026; Ex. ECO-C-084; Ex. ECO-C-101; Ex. ECO-C-091; Ex. ECO-C-081)

The health-care-worker vaccination orders of California (order of August 5; last dose by September 30, 2021; misdemeanor enforcement), New York (10 NYCRR 2.61 of August 26; "Covered entities shall continuously require personnel to be fully vaccinated," first dose by September 27 for hospitals and nursing homes), New Jersey (Executive Order 252 of August 6; September 7), Connecticut (Executive Order 13B of August 6; September 7), Illinois (Executive Order 2021-20; September 5 and 19) and Washington (Proclamation 21-14 of August 9; October 18) governed the hospitals, clinics and nursing homes that are the industry's health-care customers and its workforce's providers, and the CMS rules required every nursing home to test all staff and contractors, to run a vaccination program and to screen every entrant on every day of the quarter. The school and child-care face-covering and exposure-control orders of New Jersey (Executive Order 251, August 9, "regardless of vaccination status"), New York (10 NYCRR 2.60, August 27), Connecticut (Executive Order 13A, August 5), Illinois (Executive Order 2021-18, August 4, and 2021-20), Pennsylvania (order of August 31, effective September 7, reaching every licensed child-care provider), Rhode Island (Executive Order 21-87, August 19), Kentucky (Executive Order 2021-585, August 10 to September 9), California (July 12), Delaware (August 16), Louisiana (August 4), Maryland's State Board of Education emergency regulation (COMAR 13A.01.07, adopted August 26, 2021 and approved September 14, 2021) (Ex. ECO-B-148), Massachusetts (August 25), Nevada (July 30), New Mexico (August 20), Washington (July 30), Oregon (August 2), Hawaii and the District (July 31), with the classroom-quarantine rules of Indiana (September 1) and Florida (August 6 and September 22), governed the workforce's children and kept exposed children, and their parents, at home. The Supreme Court of Texas's Fortieth Emergency Order governed the industry's collection, lease and licensing disputes from August 1 to October 1; the coordinated federal moratoria barred foreclosure-related evictions "[t]hrough September 30, 2021" and the CFPB's rule barred foreclosure referrals without procedural safeguards from August 31; the CDC's eviction order ran to July 31 and its successor from August 3 to August 26; Washington's Proclamation 21-09 ran "from July 1, 2021, until 11:59 p.m. on September 30, 2021," California's AB 832 covered rent accrued through September 30, 2021, Illinois' Executive Order 2020-30 was re-issued monthly to October 3, 2021 and New Jersey's Executive Order 106 ran to January 1, 2022. The public health emergency renewed effective July 20 and the national emergency continued from March 1 stood as predicates. Enforcement: the health-care-worker orders by license sanction and, for CMS-certified facilities, as conditions of participation under 42 C.F.R. part 483; the school and child-care orders under the State education and licensing codes; the moratoria by contempt and, for the CDC order, criminal fines under 42 U.S.C. § 271. Status: the CMS rules, the Healthcare ETS, the predicates, the moratoria and the Washington, California, Illinois and New Jersey instruments in force July 1; the health-care-worker and school orders from their August and September dates; the Fortieth Emergency Order from August 1; all but the CDC order and the July 31 moratoria in force September 30.¹³⁸

B-15. The tribal and territorial instruments (Ex. AGY-TRIBAL-054; Ex. AGY-TRIBAL-040; Ex. AGY-TRIBAL-020; Ex. AZ-082; Ex. AGY-TERRITORIES-034; Ex. AGY-TERRITORIES-035; Ex. AGY-TERRITORIES-071)

The Yakama Nation's Public Safety Order No. 3 imposed face-covering and exposure-control requirements on every business on its lands "regardless of whether the business is licensed by the Yakama Nation or the State of Washington," with $500 fines enforced in tribal court, on every day of the quarter; the Navajo Nation held its businesses at Yellow Status (50 percent) on July 1 and returned them to Orange Status from August 12 under a never-rescinded face-covering and exposure-control mandate; the Mescalero Apache Tribe re-imposed, as an airborne-transmission control on every tribal enterprise, face coverings on every enterprise and contractor employee "regardless of vaccination status" on August 19; Puerto Rico's OE-2021-063 (effective August 23) and OE-2021-064 (effective August 30) required the employees of restaurants, bars, gyms, salons, child-care centers, casinos and grocery stores to be vaccinated or tested weekly, and OE-2021-065 (August 30) imposed face-covering and exposure-control requirements in every indoor space and closed businesses from midnight to 5:00 a.m.; American Samoa's border closure (no scheduled passenger flights; entry permits suspended; quarantine of every entrant) was in force on every day. Status: as stated; the Yakama, Navajo and American Samoa instruments July 1 and September 30. Functions: DS and CB (every mainland manufacturer that sells into those markets), TR.¹³⁹

C. How the instruments reached the functions

PF and WH. In California, Oregon and Virginia every production floor and every dock ran on every day of the quarter under a workplace regulation that fixed its screening, its exclusion of exposed workers with pay, its testing, its training and its records, its distancing (in Oregon, outside the June 30 to August 12 suspension of the rule's general distancing provisions) and, in Oregon from August 13, its face coverings; in New York every plant's plan was mandatory from August 5 and activated from September 6; in Washington, Illinois, Nevada, Louisiana, New Mexico, Hawaii and the District, and in the thirty-odd cities and counties named in subpart B, every worker on every floor where a non-household person was present was masked by order from dates between July 17 and September 14, with the operator under a duty to enforce and to post; in Columbus the order named manufacturing workplaces in terms; at every port and rail yard the federal face-covering requirement, the Coast Guard's vessel conditions and the FRA's order governed the gate and the dock. The Notice's own words describe the result: "requiring employees and customers to wear face coverings" is a modification "required by a governmental order as a condition of reopening a physical space for business or service to the public," a workplace "closed due to a governmental order for certain purposes, but ... open for other limited purposes" is partially suspended, and a manufacturer that reduces its hours to comply with a sanitation order is partially suspended.¹⁴⁰

SC. The industry's foreign suppliers' engineers, inspectors and installers could not enter the United States from Europe, Britain, Ireland, Brazil, South Africa, China, Iran or India on any day of the quarter; its Canadian and Mexican tier plants could send no one across the land border on any travel the notifications did not certify as essential; the protective equipment its State standards required was bought in a market under federal allocation to November 15, 2021; and the chip shortage the White House found in June and the Commerce Department was still investigating on September 24 constrained every plant that uses a controller (Ex. FED-207; Ex. FED-235; Ex. ECO-A-071; Ex. ECO-A-101; Ex. ECO-A-077). The Census Bureau found in the week ending July 18, 2021 that 64.6 percent of small manufacturers reported domestic supplier delays (Ex. LAW-243); the Federal Reserve recorded on September 8 activity "constrained by supply disruptions and labor shortages" and "international travel restrictions" (Ex. ECO-A-107).¹⁴¹

DS and CB. Every hospital, clinic and nursing home that buys the industry's goods operated under the Healthcare ETS and the CMS rules and, from August and September, under vaccination mandates on its staff; every school and college under face-covering and quarantine orders; every federal agency under the Task Force's rules; every restaurant, bar, gym and venue in Hawaii, New Orleans, New York City, San Francisco and Honolulu under capacity caps or vaccination-proof conditions; every business in Texas and Florida under statutes fixing what it could require of its customers; every Canadian and Mexican customer behind a closed land border. A closed or conditioned customer buys less, later, and on the order's terms.

EN, EV and TR. The technical office in California, Oregon, Virginia and, from September 6, New York ran under the standards' plans; every trade show, customer visit and field-service call ran under the conveyance order, the testing order and the entry proclamations, under the Task Force's fifty-person rule for federal events, under Hawaii's ten-person indoor cap and Honolulu's vaccination-proof condition, and under the indoor face-covering and exposure-control orders of every jurisdiction in subpart B; a technician entering Hawaii ran under Safe Travels on every day (Ex. HI-024; Ex. MET-HNL-035; Ex. FED-272).

HR and WF. The National Emphasis Program targeted the plants; the standards' screening, exclusion and training rules governed every shift and every hire in four States; the conveyance order governed every commute; the school and child-care face-covering and quarantine orders of eighteen States and the District and the classroom-quarantine rules governed the workforce's availability; the health-care-worker mandates governed who could treat, test and vaccinate the workforce; Puerto Rico's and New Orleans's employee vaccination-or-test orders governed who could work in the industry's customers. The Bureau of Labor Statistics found in July 2021 that 5.2 million persons "had been unable to work because their employer closed or lost business due to the pandemic" and in September 2021 that 5.0 million still could not, and the Federal Reserve attributed the quarter's labor shortages in part to "childcare needs" (Ex. LAW-224; Ex. LAW-223; Ex. ECO-B-090).¹⁴²

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.¹⁴³

The arithmetic. The orders' own steps fix how long the restoration took. A Michigan plant closed March 24, 2020 restarted May 11, 2020 under safeguards that ran as gubernatorial orders to October 2, 2020 and as MIOSHA rules to June 22, 2021, with every indoor non-residential gathering prohibited from November 18, 2020 to January 31, 2021 and remote work compelled to May 24, 2021; the last rule came off nine days before the quarter began (Ex. MI-011; Ex. MI-026; Ex. SEC-10-024; Ex. AGY-ST-LABOR-WORKPLACE-062; Ex. MI-054; Ex. MI-060; Ex. ECO-B-076; Ex. MI-062; Ex. MI-063; Ex. AGY-ST-LABOR-WORKPLACE-063; Ex. MI-076). A New Jersey plant ran under a telework mandate and a manufacturing protocol from March 21 and April 10, 2020 to June 4, 2021, and under worksite rules for unvaccinated and unverified employees after that (Ex. SEC-10-023; Ex. SEC-10-020; Ex. SEC-10-022; Ex. NJ-050). A Pennsylvania plant closed March 19, 2020 reopened by county from May 8 to June 5, 2020 under a Worker Safety Order, ran its office remotely "[u]nless not possible" from July 16, 2020 and "[u]nless impossible" from November 27, 2020 (the order of November 23) to April 3, 2021, and was released from the mitigation orders on May 31 and from its face-covering and exposure-control order on June 28, 2021, three days before the quarter began (Ex. PA-002; Ex. PA-008; Ex. PA-010; Ex. PA-016; Ex. PA-022; Ex. PA-035; Ex. PA-100). An Illinois plant confined to critical products from March 21, 2020 reopened May 29, 2020, sold at no show for a year because every venue was capped at fifty and then closed, sent its non-production staff home by order from November 20, 2020 into February 2021, reached Phase 5 on June 11, 2021, and was placed under face-covering and exposure-control requirements again from August 30 (Ex. SEC-10-034; Ex. SEC-10-037; Ex. SEC-10-038; Ex. IL-037; Ex. SEC-10-036). A Washington plant closed March 25, 2020 ran under Phase 1 manufacturing requirements made workplace law, capped its office at 25 percent from November 17, 2020, was released from the Phase 3 caps on June 30, 2021, the quarter's eve, and was placed under face-covering and exposure-control requirements again from August 23 (Ex. WA-016; Ex. WA-034; Ex. AGY-ST-LABOR-WORKPLACE-050; Ex. WA-047; Ex. WA-065; Ex. WA-078). A California plant closed March 19, 2020 reopened May 8, 2020, ran its office remotely in the Purple and Red tiers and under the Regional order, came under the Cal/OSHA standard November 30, 2020, was released from the Blueprint June 15, 2021 and stayed under the readopted standard on every day of the quarter (Ex. CA-007; Ex. CA-015; Ex. CA-055; Ex. CA-020; Ex. SEC-10-039; Ex. CA-027; Ex. SEC-10-041). An Oregon plant was never released: the rule that bound it from November 16, 2020 was permanent from May 4, 2021, kept its exposure-assessment, plan, ventilation, notification, training and sanitation duties on every day of the quarter while its general distancing and face-covering provisions were suspended from June 30 to August 12, 2021 (Ex. OR-044), and was tightened twice inside the quarter (Ex. SEC-10-054; Ex. SEC-10-055; Ex. SEC-10-056; Ex. SEC-10-057). In every case the last general step took effect between April 3 and June 30, 2021, and the third quarter began within one day to thirteen weeks; the workforce dismantled by layoff and quarantine (1,361,000 jobs in April 2020; 350,000 still absent on September 30, 2021), the supplier contracts cancelled, the inventories run down, the shows withdrawn from and the customers' own restorations were not reversed on the day the last order lapsed, and the Federal Reserve's account of mid-2021 is the mechanism in the central bank's own words: "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" (Ex. LAW-221).¹⁴⁴ The interconnected-economy section states the point in full; the Notice itself recognizes that an employer suspended for part of a quarter is eligible for the whole quarter and that a transition period follows a change compelled by order.¹⁴⁵

The four pathways. Continuing suspension reaches the third quarter of 2021 by four independent routes: (1) the orders in force on every day of the quarter (subparts B-1 through B-10 and B-13 to B-15); (2) the orders issued inside it (B-9 to B-12, B-14); (3) the counterparty orders in force in the quarter (B-6, B-14, B-15); and (4) the restoration period the orders' own phase steps compelled. Each is independently sufficient; the finding in subpart F rests on all four, and the closing paragraph of this section names the expired instruments on which it does not rest.

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

No orders in effect.

The orders had lifted; any effect was a lingering effect.

Masks are a modification of nominal effect.

The employer was not the addressee.

Guidance, not orders.

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 face-covering and exposure-control order and its security directives, the entry proclamations and land-border prohibitions, the pre-departure testing and Title 42 orders, the Defense Production Act delegations and the scarce-materials designation, OSHA's National Emphasis Program targeting the industry's plants and its Healthcare Emergency Temporary Standard on the industry's health-care customers, the federal workplace and contractor rules, the conveyance order's face-covering requirement at every sea port as the Coast Guard's bulletins applied it and the FRA's rail order, the California, Oregon and Virginia workplace standards, the New York HERO Act plans, the indoor face-covering and exposure-control orders of Washington, Illinois, Nevada, Hawaii, Louisiana, New Mexico, Oregon and the District of Columbia, of California and Connecticut as to the unvaccinated, and of Los Angeles County, the Bay Area, Sacramento, St. Louis, Kansas City, New Orleans, Chicago and Cook County, Philadelphia, Baltimore, the Maryland suburbs, Boston, Charlotte, Columbus, Clark County, Dallas County and their counterparts, the vaccination-proof conditions of entry in New York City, San Francisco, New Orleans and Honolulu, the statutes and orders of the preemption States regulating every business's dealings with its customers, the health-care-worker, school and child-care orders on the industry's counterparties and workforce, and the tribal and territorial orders on the markets the industry sells into (Ex. FED-020; Ex. FED-051; Ex. FED-052; Ex. FED-207; Ex. FED-208; Ex. FED-233; Ex. FED-234; Ex. FED-235; Ex. FED-042; Ex. FED-038; Ex. SEC-10-001; Ex. ECO-A-071; Ex. SEC-10-015; Ex. FED-080; Ex. FED-272; Ex. AGY-USCG-PORTS-037 (the bulletin applying Ex. FED-020 at sea ports); Ex. AGY-AVIATION-SURFACE-014; Ex. SEC-10-041; Ex. SEC-10-055; Ex. SEC-10-056; Ex. SEC-10-057; Ex. SEC-10-043; Ex. SEC-10-031; Ex. WA-078; Ex. SEC-10-036; Ex. NV-041; Ex. HI-024; Ex. LA-036; Ex. NM-070; Ex. OR-048; Ex. DC-057; Ex. CA-035; Ex. CT-050; Ex. MET-LA-018; Ex. MET-SFO-071; Ex. MET-SAC-015; 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-DCM-023; Ex. MET-BOS-013; Ex. MET-CLT-001; Ex. MET-CMH-050; Ex. MET-LAS-006; Ex. MET-DFW-028; Ex. MET-NYC-017; Ex. MET-SFO-011; Ex. MET-MSY-029; Ex. MET-HNL-035; Ex. TX-036; Ex. FL-030; Ex. GA-043; Ex. MT-072; Ex. ECO-B-083; Ex. ECO-B-055; Ex. ECO-B-029; Ex. ECO-B-054; Ex. AGY-TRIBAL-054; Ex. AGY-TERRITORIES-071 and the exhibits collected in subpart B), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of manufacturers throughout the United States. They did so by fixing, in the third quarter of 2021 as in the six before it, who could enter the plant and on what screening, how far apart the line ran, who was excluded and for how long, what every worker wore, who could cross the border to install a machine or inspect a part, who could sit in a customer's plant or a show hall and on what proof, how every commute and every flight ran, and how long the restoration compelled by the closure orders' own steps took.

What this analysis does not claim was in force

Of the statewide production-floor regimes, the proof for this quarter rests on the California, Oregon and Virginia workplace standards (Ex. SEC-10-041; Ex. SEC-10-055; Ex. SEC-10-043), the New York HERO Act plans (Ex. SEC-10-031), the face-covering and exposure-control orders of the States and metros named in subparts B-11 and B-12, Hawaii's proclamations and Executive Order 21-05 (Ex. HI-023; Ex. HI-024; Ex. HI-025), New Mexico's orders of June 30 and August 17, 2021 (Ex. NM-060; Ex. NM-070), Rhode Island's Executive Order 21-69 for the days it ran (July 1 to 6) (Ex. RI-044; Ex. RI-046) and New Jersey's worksite rules for unvaccinated and unverified employees as carried by Executive Orders 242 and 243 (Ex. NJ-050; Ex. SEC-10-022); the federal, sector, counterparty, tribal and territorial instruments on which it also rests are 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 closure orders of every State (Ex. MI-011; Ex. PA-002; Ex. NY-003; Ex. SEC-10-034; Ex. OH-011; Ex. WA-016; Ex. CA-007 and their counterparts) and their restart orders (Ex. MI-026; Ex. SEC-10-051; Ex. SEC-10-046; Ex. SEC-10-048); the winter 2020-21 telework, gathering and capacity orders (Ex. SEC-10-038; Ex. MI-060; Ex. PA-022; Ex. WA-047; Ex. CA-020; Ex. OR-035; Ex. CO-081; Ex. NM-039 and their counterparts); the MIOSHA emergency rules and the MDHHS orders (June 22, 2021) (Ex. SEC-10-024; Ex. MI-076); New Jersey's Executive Order No. 192 as a free-standing order (July 4, 2021) and the Executive Order No. 107 telework mandate (June 4, 2021) (Ex. SEC-10-021; Ex. SEC-10-023); Pennsylvania's mitigation orders (May 31) and face-covering and exposure-control order (June 28, 2021) (Ex. PA-035; Ex. PA-100); Minnesota's Preparedness Plan requirement (June 30) and face-covering and exposure-control order (May 14, 2021) (Ex. MN-038); Massachusetts' standards and face-covering and exposure-control order (May 29, 2021) (Ex. MA-048); Kentucky's Healthy at Work requirements (June 11, 2021) (Ex. KY-049); Illinois' capacity and gathering caps (June 11, 2021) (Ex. IL-037); the Washington and Oregon capacity caps (June 30, 2021) (Ex. WA-065; Ex. OR-043); the statewide face-covering and exposure-control orders that ended before July 1, 2021 other than those reinstated in the quarter; the FEMA export bar, 44 C.F.R. part 328 (June 30, 2021) (Ex. SEC-10-009); the FFCRA leave mandate (December 31, 2020) (Ex. FED-170); the State travel quarantines other than Hawaii's and Kansas's (the last, New York's international rule, June 25, 2021) (Ex. NY-049); Texas's GA-29 and the GA-28 and GA-32 regime (March 10, 2021) (Ex. TX-029); the Proclamations 10014 and 10052 worker suspensions (February 24 and March 31, 2021) (Ex. FED-214; Ex. FED-213); the OSHA vaccination-or-testing standard and the CMS staff-vaccination rule (November 5, 2021); Proclamation 10294 and the DHS notifications of October 21, 2021 (November 8, 2021) (Ex. FED-209; Ex. FED-236; Ex. FED-259), each cited only for the end date it fixes; Prince George's County Executive Order No. 22-2021 (October 4, 2021) (Ex. MET-DCM-047), cited only for its recital of Executive Order No. 18-2021; Washington's Order 20-03.7 (February 16, 2022) (Ex. SEC-10-070), cited only for its recital of Orders 20-03.4 to 20-03.6; the King County vaccination-verification order (effective October 25, 2021) (Ex. MET-SEA-001) and the Los Angeles County and City vaccination-proof orders with compliance dates in October and November 2021 (Ex. MET-LA-020; Ex. MET-LA-040), each cited only as an order issued in the quarter; Executive Orders 14042 and 14043 and the Task Force contractor guidance as obligations (October 15, 2021 onward) (Ex. FED-063; Ex. FED-064; Ex. FED-274), cited only as federal statements of the emergency made inside the quarter; the Supreme Court of Texas's Forty-Third Emergency Order, Misc. Docket No. 21-9119 (signed September 21, 2021; effective October 1, 2021) (Ex. TX-065), which succeeded the Fortieth; and Hawaii's Executive Order 21-08 (November 12, 2021) (Ex. HI-030). Michigan 2021 PA 87 § 250 (enacted September 29, 2021 and declared unenforceable) (Ex. MI-086) is cited only as the county school orders' context; nothing here rests on it. The Healthcare Emergency Temporary Standard is relied on as an order on the industry's health-care counterparties and not as an order on a plant. The Coast Guard's Marine Safety Information Bulletins are cited as the guidance by which the Coast Guard applied the CDC conveyance order at the ports and stated its expectations of arriving vessels, and not as orders; the Yakama Nation's Reopening Plan (Ex. AGY-TRIBAL-057; Ex. AGY-TRIBAL-058), the Navajo Nation's Public Health Emergency Order No. 2021-020 of October 18, 2021 (Ex. AGY-TRIBAL-022), American Samoa's declaration of October 8, 2021 (Ex. AGY-TERRITORIES-075) and the Virgin Islands' Thirty-First Supplemental Order of October 29, 2021 (Ex. AGY-TERRITORIES-069) are cited only as context or as proof of an end date, and nothing here rests on them as third-quarter orders.