Retail Trade

The six quarters

In each of the six calendar quarters from April 1, 2020 through September 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19 were in force on the first day and on the last day, reached every function of the retail trade, and caused a temporary delay, interruption or termination of a more than nominal portion of the industry's operations. This section states, for each quarter, the orders in force by layer with their exhibit identifiers and their first-day and last-day status, how they reached the functions, and the finding in Tri-State's terms. The third quarter of 2021 is treated in a self-contained section because the Service's letters most often say of that quarter that no orders were in effect.

The second quarter of 2020

The quarter's proof begins March 13, 2020, because wages paid after March 12, 2020 were claimed on the Form 941 for the second quarter.¹¹⁹ On April 1, 2020, non-essential retail was closed to the public or confined to Minimum Basic Operations in forty-three of the fifty-one jurisdictions: in the Northeast, New Jersey (EO 107, 9:00 p.m. March 21; Ex. NJ-004), New York (EO 202.8, 8:00 p.m. March 22; Ex. NY-002), Pennsylvania (March 19 and 23; Ex. PA-002), Massachusetts (noon March 24; Ex. MA-008), Connecticut (8:00 p.m. March 23; Ex. CT-007), Rhode Island (March 30; Ex. RI-010), Maine (12:01 a.m. March 25; Ex. ME-007), Vermont (5:00 p.m. March 25; Ex. VT-010) and New Hampshire (March 27; Ex. NH-009); in the Midwest, Michigan (12:01 a.m. March 24; Ex. MI-011), Illinois (5:00 p.m. March 21; Ex. IL-005), Ohio (March 23; Ex. OH-011), Minnesota (11:59 p.m. March 27; Ex. MN-010), Indiana (March 24; Ex. IN-006), Wisconsin (8:00 a.m. March 25; Ex. WI-002) and Kansas (March 30; Ex. KS-009); in the South, Kentucky (8:00 p.m. March 23; Ex. KY-008), Maryland (5:00 p.m. March 23; Ex. MD-005), Virginia (ten patrons or "it must close," 11:59 p.m. March 24; Ex. VA-004), North Carolina (March 30; Ex. NC-005), Louisiana (March 23; Ex. LA-005), West Virginia (8:00 p.m. March 24; Ex. WV-009), Delaware (March 24; Ex. DE-005), the District (10:00 p.m. March 25; Ex. DC-005), Tennessee (11:59 p.m. March 31; Ex. TN-007), Alabama (six categories, 5:00 p.m. March 28; Ex. AL-011), Oklahoma (March 25 and April 1; Ex. OK-011) and, within days, Texas (12:01 a.m. April 2; Ex. TX-008), Georgia (April 3; Ex. GA-010), Mississippi (April 3; Ex. MS-009), Florida (April 3 statewide; Ex. FL-010; four counties from March 30, Ex. FL-017) and South Carolina (5:00 p.m. April 6; Ex. SC-011); in the West, California (March 19; Ex. CA-007), Washington (March 25; Ex. WA-016), Oregon (March 24; Ex. OR-007), New Mexico (March 24; Ex. NM-006), Nevada (March 20; Ex. NV-004), Colorado (March 26; Ex. CO-012), Arizona (March 31; Ex. AZ-010), Hawaii (March 25; Ex. HI-004), Idaho (March 25; Ex. ID-003), Montana (March 28; Ex. MT-009) and Alaska (March 28; Ex. AK-013).¹²⁰ The eight jurisdictions without a categorical closure bound the sales floor by other means on the same day: Missouri's 25 and 10 percent caps from April 6 (Ex. MO-004), Iowa's category and mall closures of March 26 and April 7 (Exs. IA-005, SEC-07-021), Arkansas's mandatory protocols from April 6 (Ex. AR-041), Utah's directive and county closures (Exs. UT-004, MET-SLC-005), South Dakota's "shall" order on every enclosed retail business (Ex. SD-009), Nebraska's, North Dakota's and Wyoming's Directed Health Measures and public health orders (Exs. NE-002, ND-005, WY-005).¹²¹ Essential retailers that stayed open operated under caps from the first weeks: Delaware 20 percent (April 2; Ex. DE-012), Maine five to 100 customers by square footage (April 2; Ex. ME-011), Alabama 50 percent (April 4; Ex. AL-013), New Mexico 20 percent (April 7; Ex. NM-010), South Carolina five per 1,000 square feet or 20 percent (April 7; Ex. SC-013), Michigan four per 1,000 square feet with departments closed (April 9; Ex. SEC-07-022), New Jersey 50 percent under exposure-control conditions of face coverings and gloves (8:00 p.m. April 10; Ex. SEC-07-011), North Carolina 20 percent or five per 1,000 (April 13; Ex. NC-008), Pennsylvania 50 percent (8:00 p.m. April 19; Ex. PA-008), Wisconsin 25 percent or four per 1,000 (April 24; Ex. WI-003) and Kentucky one adult per household (April 8; Ex. KY-014).¹²² Enclosed malls were closed in Connecticut (Ex. SEC-07-020), New York (Ex. NY-012), Maryland (Ex. MD-004), New Jersey (Ex. NJ-004), Louisiana (Ex. LA-005), Oregon (Ex. OR-007), West Virginia (Ex. WV-009), Iowa (Ex. SEC-07-021), Delaware (Ex. DE-013) and every closure State. The metropolitan health officers had closed non-essential premises and confined residents in Los Angeles County (Exs. MET-LA-042, MET-LA-047), the Bay Area (Ex. MET-SFO-001), Sacramento (Ex. MET-SAC-001), San Diego (Ex. MET-SAN-003), New York City (Exs. MET-NYC-005, MET-NYC-006), Philadelphia (Ex. MET-PHL-002), Boston (Ex. MET-BOS-050), Chicago (Ex. MET-CHI-005), Dallas and Tarrant Counties (Exs. MET-DFW-005, MET-DFW-010, MET-DFW-042), Harris County (Ex. MET-HOU-002), Kansas City (Ex. MET-KC-027), St. Louis (Ex. MET-STL-004), Nashville (Ex. MET-BNA-002), Marion County (Ex. MET-IND-002), Dane County (Ex. MET-MKE-003), New Orleans (Ex. MET-MSY-002), Atlanta (Ex. MET-ATL-001), Salt Lake County (Ex. MET-SLC-005), Honolulu (Ex. MET-HNL-042), Hillsborough County (Ex. MET-TPA-005) and Orange County, Florida (Ex. MET-ORL-004).¹²³ On the federal layer the HHS scarce-materials designation bound every retailer from March 25 (Ex. SEC-07-006); the FFCRA leave mandate bound every retailer under 500 employees from April 1 (Exs. FED-170, FED-171); the land borders were closed to non-essential travel from 11:59 p.m. March 20 and renewed April 22, May 22 and June 24 (Exs. FED-216 to FED-219, FED-239 to FED-242); the entry proclamations ran throughout (Exs. FED-200 to FED-205, FED-210, FED-211); FEMA's export rule ran from April 7 (Ex. FED-075); and the CBP duty postponement of April 20 described the importing retailer's condition (Ex. SEC-07-040).¹²⁴ The suppliers were closed: Michigan's plants March 24 to May 11 (Exs. MI-011, SEC-07-022), Pennsylvania's non-life-sustaining manufacturing and warehousing from March 19 (Exs. PA-002, PA-004), New York's from March 22 (Ex. NY-002), New Jersey's warehouses capped from April 10 (Ex. SEC-07-011), Washington's from March 25 (Ex. WA-016).¹²⁵ Every school building in the country was closed by March 25, 2020 and forty-eight States kept them closed for the year; child care was confined to essential workers' children (Exs. LAW-229, ECO-B-026, ECO-B-017, ECO-B-018, ECO-B-032, ECO-B-034, ECO-B-059).¹²⁶ Curbside-only periods followed the closures and preceded the reopenings: Vermont April 20 (Ex. VT-015), Texas April 24 (Ex. TX-010), Colorado April 27 (Ex. CO-020), Illinois May 1 to 29 (Ex. IL-013), Nevada, New Mexico and Mississippi May 1 (Exs. NV-015, NM-012, MS-011), Arizona May 4 to 8 (Ex. AZ-016), Minnesota May 4 to 17 (Ex. SEC-07-016), California and Delaware May 8 (Exs. CA-015, DE-019), New York May 15 (Ex. NY-107), New Jersey May 18 to June 15 (Ex. SEC-07-012), Massachusetts May 25 to June 8 (Ex. MA-017), the District May 29 to June 22 (Ex. DC-029).¹²⁷ On June 30, 2020, in-store retail had reopened in every closure State under a capacity order: Texas 50 percent from June 3 (Exs. TX-019, TX-021), New Jersey 50 percent from June 15 (Ex. NJ-020; EO 157 ¶ 1, operative on issuance June 26, consolidated the conditions, Ex. SEC-07-013), Pennsylvania's green phase at 75 percent (Ex. PA-011), Illinois 50 percent (Ex. IL-013 as amended by EO 2020-38), Minnesota 50 percent with malls at 50 percent (Ex. SEC-07-017), Maryland 50 percent (Ex. MD-010), Connecticut 50 percent (Ex. CT-078), North Carolina 50 percent (Ex. NC-010), Alabama 50 percent (Ex. AL-017), Mississippi 50 percent (Ex. MS-014), Nevada 50 percent (Ex. NV-016), Indiana Stage 4 (Ex. IN-024 chain), Kentucky 33 percent (Ex. KY-064), Michigan 25 percent (Ex. MI-031), the District 50 percent from June 22 (Ex. DC-079), Delaware 60 percent (Ex. DE-025), Rhode Island one customer per 300 square feet (Ex. RI-017), Maine five per 1,000 square feet (Ex. ME-028), Vermont 50 percent or one per 100 square feet (Ex. VT-097), Georgia 50 percent or eight per 1,000 square feet (Ex. GA-018), Louisiana 50 percent (Ex. LA-076), Colorado 50 percent (Ex. CO-024), Washington 30 percent in Phase 2 (Ex. WA-035), New Mexico 25 percent (Ex. NM-016), Virginia 50 percent (Ex. VA-010), Missouri's caps having ended June 15 (Ex. MO-007) and Iowa's June 12 (Ex. IA-018); New York City was in Phase Two with its malls still closed (Exs. NY-026, NY-035); and masked entry, one of the workplace infection-prevention and exposure-control conditions the same reopening orders attached to the door beside their capacity and distancing rules, was law in eighteen jurisdictions, including Connecticut (April 20; Ex. CT-016), Maine (May 1; Ex. ME-021), Maryland (April 18; Ex. MD-008), New Jersey (April 10; Ex. SEC-07-011), New York (April 17; Ex. NY-007), Pennsylvania (April 19; Ex. PA-008), Michigan (April 26; Ex. MI-020), Delaware (April 28; Ex. DE-017), Illinois (May 1; Ex. IL-013), Massachusetts (May 6; Ex. MA-016), Rhode Island (May 8; Ex. RI-016), New Mexico (May 16; Ex. NM-016), Virginia (May 29; Ex. VA-012), California (June 18; Ex. CA-016), Nevada (June 26; Ex. NV-019), North Carolina (June 26; Ex. NC-013), Washington (June 26; Ex. WA-037) and Hawaii (April 16; Ex. HI-006).¹²⁸

SF: the door was closed to the public in forty-three jurisdictions on April 1 and open only under a cap in every one of them on June 30. CU: the curbside channel was the only permitted mode of sale in the curbside-only periods and was fixed in its mechanics by the orders that created it. ST: the stockroom and distribution center operated under the warehouse closures and occupancy caps of New Jersey, Pennsylvania and New York and the distancing duties of every reopening order. SC: the plants of Michigan, Pennsylvania, New York, New Jersey and Washington were closed; the borders were closed to non-essential travel; the designated goods were rationed by federal order. ML: the malls were closed and reopened last. MK: gathering caps of ten barred every in-store event. HR: licensing offices were closed and the seasonal floor was capped. OP: headquarters and call centers were sent home by the telework mandates of New York, New Jersey, Pennsylvania, Oregon, Rhode Island and the Bay Area. WF: every school was closed; child care was confined; the FFCRA mandate paid the employee who stayed home with the child. CB: forty-two States and territories confined the customer base to its homes, and the border and entry orders closed the store to the cross-border and foreign customer.¹²⁹ The Census Bureau's April 2020 release describes the result: sales down 16.4 percent in a month, with "many businesses ... operating on a limited capacity or have ceased operations completely."¹³⁰

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 non-essential retail closure and stay-at-home orders of forty-three jurisdictions and their curbside-only and capacity successors, the occupancy, per-square-foot, one-adult-per-household and department-closure orders on essential retail, the mall closure orders, the metropolitan health officers' orders, the HHS scarce-materials designation, the FFCRA leave mandate, the land-border notices and entry proclamations, the plant and warehouse closures of the supplier States and the school and child-care closures of every State (Exs. NJ-004, NY-002, SEC-07-023, PA-002, MA-008, CT-007, MI-011, SEC-07-022, IL-005, OH-011, KY-008, KY-014, TX-008, CA-007, WA-016, VA-004, NC-008, SC-013, MO-004, SEC-07-021, SEC-07-011, PA-008, SEC-07-020, NY-012, MD-004, MET-LA-047, MET-SFO-001, MET-NYC-006, SEC-07-006, FED-170, FED-216, FED-239, FED-200, LAW-229 and the exhibits collected above), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in the retail trade throughout the United States. They did so by closing the sales floor to the public, by confining sale to a channel that had carried one-ninth of the industry's revenue, by fixing the number of customers who could enter the stores that stayed open, by closing departments and malls, by rationing goods, by closing the plants and borders that supplied the shelves, and by confining the customers and the workforce to their homes.¹³¹

The third quarter of 2020

On July 1, 2020, a capacity order governed the sales floor in every closure State: 50 to 75 percent in most, 25 percent in New Mexico (Ex. NM-023, continuing the cap of Ex. NM-016) and Michigan (Ex. MI-031), 30 percent in Washington's Phase 2 counties (Ex. WA-035); New York City's malls remained closed to September 9 (Ex. NY-035) and its in-store shopping at 50 percent (Ex. NY-125); New Jersey's EO 157 retail conditions (50 percent, senior hours, barriers, contactless payment, face coverings and gloves), in force since June 26, continued, and its indoor-recreation provisions took effect 6:00 a.m. July 2 (Exs. SEC-07-013, NJ-026); and the quarter added, State by State, the workplace infection-prevention and exposure-control requirement of masked entry with retailer duties, each instrument arriving beside the capacity and distancing conditions already on the floor: New Mexico's duty to refuse entry to the unmasked (July 1; Exs. NM-023, NM-026), Pennsylvania's universal face coverings (July 1; Ex. PA-015), Texas GA-29 requiring masks "inside any commercial entity" with fines (July 3; Ex. TX-022), Washington's Proclamation 20-25.6 and "no mask, no service" (July 7; Ex. WA-040), Maine's large-retailer enforcement order (July 8; Ex. ME-029), Kentucky (July 10; Ex. KY-022), Louisiana (July 13; Ex. LA-014), Alabama (July 16; Ex. AL-027), Colorado's duty to refuse service (July 17; Exs. CO-031, CO-049), Arkansas (July 20; Ex. AR-060), Ohio (July 23; Ex. OH-030), Minnesota (July 25; Ex. MN-027), Indiana (July 27; Ex. IN-035), Wisconsin and Vermont (August 1; Exs. WI-009, VT-027), Mississippi (August 5; Ex. MS-033), Omaha (August 11; Ex. NE-072) and Lincoln (July 20; Ex. NE-079); by September 30, 2020 masked entry was law in thirty-four States and the District (KFF's October 1, 2020 file records thirty-three statewide orders after Mississippi's statewide order expired at the end of September 30, Ex. LAW-231).¹³² Malls reopened last and conditionally: Louisiana's common areas from May 15 and June 5 (Ex. LA-076), New York's upstate malls July 10 with HVAC filtration conditions (Exs. NY-032, NY-114), New York City's September 9 (Ex. NY-035). The capacity steps moved within the quarter: Texas to 75 percent September 21 outside high-hospitalization areas (Ex. TX-023); Maryland to 75 percent September 4 (Ex. MD-016); Louisiana to 75 percent September 11 (Exs. LA-018, LA-079); Mississippi to 75 percent September 14 (Ex. MS-038); California's Blueprint fixed 25 percent in Purple and 50 percent in Red counties from August 31 (Ex. CA-055) after the July 13 order had closed indoor malls in Monitoring List counties (Ex. CA-010); Florida's EO 20-244 ended State caps September 25, 2020, the first State to remove its retail regime (Ex. FL-047).¹³³ The metropolitan face-covering orders of Maricopa and Pima Counties (Exs. MET-PHX-001, MET-PHX-007), Cincinnati (Ex. MET-CIN-001), Cleveland (Exs. MET-CLE-005, MET-CLE-006), Columbus (Ex. MET-CMH-018), Orange County, Florida (Ex. MET-ORL-009), Hillsborough County (Ex. MET-TPA-008), Montgomery County, Maryland (Ex. MET-DCM-038) and the county directives of Tennessee (Exs. TN-069, TN-073) reached the sales floor where the State had not. On the federal layer the HHS designation was extended July 23 (Ex. SEC-07-034); DHS renewed the border prohibition July 22, August 21 and September 23 (Exs. FED-220 to FED-222, FED-243 to FED-245); the entry proclamations continued (Exs. FED-200 to FED-205, FED-211, FED-212); the FFCRA mandate ran the whole quarter (Exs. FED-170, FED-172); FEMA extended the export rule August 10 (Ex. FED-077); and the CDC eviction moratorium took effect September 4 (Ex. FED-022).¹³⁴ The traveler-quarantine orders of New York (June 25; Ex. ECO-C-001), Connecticut (Exs. ECO-C-005, ECO-C-006), New Mexico (July 1; Ex. ECO-C-019), Hawaii (Ex. ECO-C-010), Chicago (July 2; Ex. ECO-C-031) and their counterparts confined the traveling customer; gathering caps everywhere barred in-store events.¹³⁵

SF: every sales floor in every closure State operated at a fraction of its capacity on July 1 and under a masked-entry and exposure-control duty in thirty-four States and the District on September 30; the retailer was made the enforcer of the State's airborne-transmission controls at its own door. ML: malls reopened at reduced capacity with common areas closed or conditioned. MK: gathering caps barred launches, signings and demonstrations. SC: the border, entry and allocation orders ran throughout. WF: the FFCRA mandate ran to the quarter's end and the fall 2020 remote and hybrid school orders began. CB: the quarantine orders confined the traveling customer and the masked-entry orders conditioned every resident customer's entry.¹³⁶ The Bureau of Labor Statistics found in this quarter that 19 percent of establishments "experienced a government-mandated closure" and 56 percent "a decrease in demand."¹³⁷

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 retail capacity orders of every closure State, the masked-entry and exposure-control orders of thirty-four States and the District with their retailer enforcement duties, the mall reopening conditions, the metropolitan face-covering orders, the HHS designation as extended, the land-border notices, the entry proclamations, the FFCRA mandate and the traveler-quarantine orders (Exs. NM-023, TX-022, WA-040, ME-029, KY-022, LA-014, OH-030, MN-027, AR-060, WI-009, VT-027, NE-072, SEC-07-013, SEC-07-017, NY-114, NY-035, CA-055, CA-010, TX-023, MD-016, LA-079, MS-038, MET-PHX-001, MET-CIN-001, SEC-07-034, FED-220, FED-243, FED-172, FED-022, ECO-C-001, ECO-C-019 and the exhibits collected above), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in the retail trade throughout the United States. They did so by fixing how many customers could stand on the sales floor, what each of them wore, who could enter the mall and when, and who could travel to the store.

The fourth quarter of 2020

On October 1, 2020, the third-quarter caps and masked-entry orders continued; Nevada's Directive 033, signed September 30 and effective October 1, required capacity signage from October 5 (Ex. NV-028); Wisconsin's Emergency Order 3 capped rooms open to the public at 25 percent from October 8 to November 6 (Ex. WI-012); New Mexico closed retail at 10:00 p.m. from October 23 (Ex. NM-036).¹³⁸ The winter re-tightening then fell on the holiday season: Utah's statewide face-covering duties on employees and patrons, with its gathering, curfew and event limits (November 9; Ex. UT-029); North Dakota's and West Virginia's business mask-enforcement duties (November 14; Exs. ND-061, WV-051); New Mexico's second closure of non-essential retail (November 16 to December 1) and big-box closure (November 19), then a county-level system of 25, 33, 50 and 75 percent from December 2 (Exs. NM-039, NM-040, NM-047); Ohio's Retail and Business Compliance order (November 16; Ex. SEC-07-037) and Stay at Home Tonight curfew closing retail 10:00 p.m. to 5:00 a.m. (November 19; Ex. OH-039); Washington's 25 percent with food courts closed (November 17; Ex. WA-047); Michigan's 30 percent (November 18; Ex. MI-061 chain); Illinois' Tier 3 at 25 percent with grocery at 50 (November 20; Ex. IL-031); Maryland's 50 percent (November 20; Ex. MD-021); New Hampshire's face-covering order for public spaces where distancing was not possible (November 20; Ex. NH-031); Louisiana's 50 percent (November 25; Ex. LA-023); North Carolina's retailer enforcement duty (November 25; Ex. NC-022); Nevada's requirement that large stores station employees at entrances to count entrants (November 24; Ex. NV-030); Rhode Island's one customer per 100 square feet with posted plans and dressing rooms closed (November 30; Exs. RI-029, RI-032); California's Regional Stay at Home Order cutting retail to 20 percent in Southern California and the San Joaquin Valley from December 6 and the Bay Area from December 17 (Ex. CA-020); Wyoming's statewide face coverings "inside or in line to enter any business" (December 9; Ex. WY-040); North Carolina's Modified Stay at Home Order (December 11; Ex. NC-023); Pennsylvania's 50 percent (December 12 to January 4; Ex. PA-028); Delaware's 30 percent, 20 percent for stores over 100,000 square feet (December 14; Ex. DE-033); Kentucky's 50 percent (December 14); the District's 25 percent or 250 (December 17; Ex. DC-014); Massachusetts' 25 percent (December 26; Ex. MA-040); Montana's statewide directive of November 17, 2020 (Ex. MT-018), effective November 20, which placed every indoor public space under the airborne-transmission control of face coverings and capped gatherings at 25 to January 15, 2021 (masks to February 12, 2021; Exs. MT-016, MT-021), and Yellowstone County's 25-person cap and 10:00 p.m. closure (Ex. MT-052); Idaho's Stage 2 (Exs. ID-009, ID-010); Anchorage's 25 percent (December 1; Ex. AK-074); Shelby County's Safer at Home (December 21; Ex. MET-BNA-071); Chicago's curfew and closure orders (Exs. MET-CHI-021, MET-CHI-022).¹³⁹ The HHS designation's expiry was corrected to January 19, 2021 (Ex. SEC-07-035); DHS renewed the border prohibition October 22, November 23 and December 22 (Exs. FED-223 to FED-225, FED-246 to FED-248); the FFCRA mandate ran to December 31 (Ex. FED-170); FEMA re-extended the export rule to June 30, 2021 (Ex. FED-078); the CDC eviction moratorium ran throughout (Ex. FED-022); the first pre-departure testing order took effect December 28 (Ex. FED-040); Proclamation 10131 carried the immigrant and temporary-worker suspensions to March 31, 2021 (Ex. FED-213).¹⁴⁰ The Federal Reserve's Beige Book of December 2, 2020 records "mandated restrictions (recent and prospective)" and "more school and plant closings" as the causes of the November slowdown.¹⁴¹

SF: retail was cut to 20, 25, 30 or 50 percent of capacity in California, New Mexico, Illinois, Washington, Michigan, Pennsylvania, Delaware, Rhode Island, Massachusetts, the District, Maryland, Kentucky and Louisiana in the eight weeks in which the industry earns its largest share of annual sales; non-essential retail was closed outright in New Mexico for sixteen days; Ohio conditioned every retailer's right to be open on a compliance inspection and closed every store at 10:00 p.m. ML: Washington closed the food courts; New Mexico closed the malls with the stores. MK: the holiday event was barred by gathering caps in every State. HR: the seasonal workforce was hired into a capped floor. WF: the winter school closures and the FFCRA mandate ran to December 31. CB: the masked-entry and exposure-control orders spread to North Dakota, Utah, Wyoming, New Hampshire and West Virginia; the traveler quarantines and the border orders ran throughout.

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 continuing capacity and masked-entry orders of the third quarter and the winter re-tightening orders of California, New Mexico, Illinois, Washington, Michigan, Pennsylvania, Delaware, Rhode Island, Massachusetts, the District, Maryland, Kentucky, Louisiana, Ohio, North Carolina, Nevada, Utah, North Dakota, West Virginia, Wyoming, New Hampshire and Montana, with the federal designation, border, entry, leave and eviction instruments (Exs. CA-020, NM-039, NM-040, NM-047, IL-031, WA-047, MI-061, PA-028, DE-033, RI-032, MA-040, DC-014, MD-021, LA-023, SEC-07-037, OH-039, NC-022, NC-023, NV-028, UT-029, ND-061, WV-051, WY-040, MT-018, MT-052, AK-074, MET-BNA-071, SEC-07-035, FED-223, FED-246, FED-170, FED-078, FED-022 and the exhibits collected above), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in the retail trade throughout the United States. They did so by cutting the sales floor to a fraction of its capacity and closing it at night in the industry's peak season, by closing non-essential retail again in New Mexico, by conditioning the right to be open on compliance in Ohio, and by keeping the border, the workforce and the customer under the orders of the preceding quarters.

The first quarter of 2021

On January 1, 2021, every re-tightening instrument of the fourth quarter was in force; Texas GA-32 held 50 percent occupancy in eighteen of twenty-two Trauma Service Areas on January 15 (Exs. TX-025, TX-026).¹⁴² The CDC conveyance order, the federal airborne-transmission control on every conveyance, took effect at 11:59 p.m. February 1, 2021 with TSA Security Directive 1582/84-21-01 and the airport directive, governing the transit commute of every store, stockroom and fulfillment employee (Exs. FED-020, FED-050, FED-054); Proclamation 10143 continued the entry suspensions from January 26 (Ex. FED-207); the CDC's global testing order took effect January 26 (Ex. FED-042); Executive Order 13991 and OMB M-21-15 governed every federal building (Exs. FED-060, FED-270); DHS renewed the border prohibition January 19, February 23 and March 19 (Exs. FED-226 to FED-229, FED-249 to FED-252); HHS extended the scarce-materials designation February 1 to June 30, 2021 with syringes added (Ex. SEC-07-036); Executive Order 14017 opened the supply-chain review February 24 (Ex. SEC-07-042); California's EO N-03-21 kept Penal Code § 396 price limits on retail sales of essentials through September 4, 2021 (Ex. SEC-07-033); OSHA launched its National Emphasis Program March 12 (Ex. FED-082); and the CDC extended the eviction moratorium January 29 and March 29 (Exs. FED-023, FED-024).¹⁴³ Withdrawal began in March: Texas GA-34 (issued March 2, effective March 10; Ex. TX-029), Mississippi (March 3; Ex. MS-051), Maryland (March 12; Ex. MD-026), Oklahoma (March 12; Ex. OK-039), Wyoming (March 16; Ex. WY-050), Connecticut's percentage cap (March 19), North Carolina to 100 percent under its masked-entry and exposure-control conditions (March 26; Ex. NC-027); Michigan restored 50 percent March 5 (Ex. MI-066); Louisiana set 75 percent March 3 and lifted the cap March 31 (Ex. LA-029); Maine set 50 percent March 26 (Ex. ME-053); Washington moved to Phase 3 at 50 percent March 22 (Ex. WA-064); Massachusetts moved to 40 percent.¹⁴⁴ On March 31, 2021, percentage or square-footage caps remained in force in twenty-five jurisdictions (California's tiers to June 15; Washington Phase 3; Oregon's county framework; New Mexico's levels; Nevada; Colorado's Dial to April 16; Illinois 50 percent; Michigan 50 percent; Minnesota; Pennsylvania 50 percent to April 4; New Jersey 50 percent; New York 50 percent; Delaware 50 percent; Rhode Island; Massachusetts 40 percent; the District 25 percent; Kentucky 60 percent; Indiana's Stage 5 rules to April 5; North Carolina 100 percent under masked-entry and exposure-control conditions; Maine 50 percent; Vermont; Hawaii; Alabama's 50 percent distancing to April 9; West Virginia to April 20; Utah to May 4), four more kept binding retail conditions short of a cap (Connecticut's Sector Rules; Virginia's EO 72; Georgia's mandatory measures; Nebraska's Directed Health Measures), Arizona's mandatory mitigation policies having ended March 25 (Ex. AZ-019), and statewide masked-entry and exposure-control orders ran in thirty-one (KFF's count, Ex. LAW-233).¹⁴⁵ Congress re-enacted the Suspension Clause for the third and fourth quarters of 2021 on March 11, 2021, against this record (Ex. LAW-003).

SF: the winter caps ran through the quarter in every re-tightening State and were withdrawn in only seven jurisdictions before March 31. WF: from February 1 every employee who rode a bus, train or ferry to work did so under the federal conveyance order, an airborne-transmission control enforced by criminal fine, and the fall and winter school orders ran to the spring. SC: the border prohibition, the entry proclamations, the testing order, the export rule and the designation ran throughout, and the President's own finding of February 24 records the supply chain's condition. CB: masked entry, with its companion exposure controls, in thirty-one jurisdictions; the border closed to the cross-border shopper.¹⁴⁶

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 re-tightening orders in force on January 1 and the caps in force in twenty-five jurisdictions and the binding retail conditions of four more on March 31, the masked-entry and exposure-control orders of thirty-one jurisdictions, the federal conveyance order and transit directives, the entry proclamations, the land-border notices, the testing order, the HHS designation as extended and the eviction moratorium (Exs. TX-025, TX-026, CA-020, CA-055, IL-031, WA-064, MI-066, PA-028, PA-022, NJ-026, NY-125, DE-058, RI-032, MA-040, DC-014, KY-064, KY-018, IN-046, IN-056, NC-027, ME-053, NM-047, FED-020, FED-050, FED-054, FED-207, FED-042, FED-226, FED-249, SEC-07-036, SEC-07-033, FED-023 and the exhibits collected above), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in the retail trade throughout the United States. They did so by holding the sales floor at a fraction of its capacity through the winter, by conditioning every customer's entry on a face covering in thirty-one jurisdictions, by governing every transit commute and every border crossing, and by rationing designated goods.

The second quarter of 2021

On April 1, 2021, percentage or square-footage caps were in force in twenty-five jurisdictions, binding retail conditions short of a cap in four more, and masked entry with its companion exposure controls in thirty-one; the HHS designation ran to June 30 (Ex. SEC-07-036); the CDC and TSA orders governed every commute (Exs. FED-020, FED-050, FED-051 from May 12); DHS renewed the border prohibition April 22, May 24 and June 23 (Exs. FED-230 to FED-232, FED-253 to FED-255); Proclamation 10199 added India May 4 (Ex. FED-208).¹⁴⁷ The stepped withdrawal ran through the quarter: Pennsylvania to 75 percent April 4 (Ex. PA-033); Indiana April 6 (Ex. IN-059); Alabama April 9 (Ex. AL-049); Colorado April 16 (Ex. CO-051); West Virginia April 20 (Ex. WV-063); Utah May 4 (Ex. UT-043); North Carolina May 14 (Ex. NC-029); Illinois to 60 percent May 14 (Ex. IL-054); New York and New Jersey May 19 (Exs. NY-054, NJ-050); Connecticut's rules May 20 (Ex. CT-046); Delaware, the District and Rhode Island May 21 (Exs. DE-037, DC-073, RI-037); Maine and Nebraska May 24 (Exs. ME-057, NE-095); Louisiana May 26 (Ex. LA-032); Minnesota May 27 (Ex. MN-039); Virginia May 28 (Ex. VA-029) and New Jersey's public masking May 28 (Ex. NJ-050); Massachusetts May 29 (Ex. MA-048); Pennsylvania May 31 (Ex. PA-036); Nevada June 1 (Ex. NV-074); Ohio June 2 (Ex. OH-050); Illinois and Kentucky June 11 (Exs. IL-037, KY-049); Vermont June 14 (Ex. VT-098); California June 15 (Ex. CA-029); Michigan June 22 (Ex. MI-076); Washington and Oregon June 30 (Exs. WA-065, WA-072, OR-043); New Mexico July 1 (Exs. NM-057, NM-060). On June 30, 2021, statewide retail caps were in force in New Mexico (to July 1; Ex. NM-057), Washington and Oregon (ending at the end of the day) and Hawaii's regime continued; unvaccinated-patron face-covering rules, each carrying a business or employer duty, were in force in California (Ex. CA-029), New York (10 NYCRR Subpart 66-3, readopted June 23; Ex. NY-133), Connecticut (EO 12A; Ex. CT-045), Rhode Island (216-RICR-50-15-7; Ex. RI-071), Washington (Order 20-03.3, effective June 30; Ex. WA-070), New Mexico (Ex. NM-060) and Nevada (Directive 045; Ex. NV-039); the Cal/OSHA emergency standard, readopted June 17, bound every California retailer (Exs. CA-024, CA-067); the OSHA Healthcare Emergency Temporary Standard took effect June 21 (Ex. FED-080); the CDC extended the eviction moratorium June 24 to July 31 (Ex. FED-025); and the White House 100-day supply-chain review of June 8 recorded the condition of the ports and the semiconductor supply (Ex. SEC-07-043).¹⁴⁸ The Federal Reserve recorded "widespread supply chain disruptions" in April 2021, and the Bureau of Labor Statistics counted 6.2 million persons unable to work in June 2021 because their employer closed or lost business.¹⁴⁹

SF: on April 1 the sales floor was capped in twenty-five jurisdictions, conditioned in four more and under masked-entry and exposure-control conditions in thirty-one; on June 30 it was capped in four and under unvaccinated-patron masking and verification rules in seven, and on every day between, a store somewhere in the country was released from a cap that had governed it for fourteen months. ST and OP: the Cal/OSHA standard, the Virginia standard, the Oregon and Washington rules and New Jersey's EO 192 rules governed every stockroom and office in those States. WF and SC: the federal layer ran unchanged. CB: the border stayed closed and India was added to the entry suspensions.¹⁵⁰

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 retail capacity orders of twenty-five jurisdictions and the binding retail conditions of four more in force on April 1 and withdrawn on dates from April 4 to July 1, the masked-entry and exposure-control orders of thirty-one jurisdictions, the unvaccinated-patron masking and verification rules of seven, the State workplace standards, the federal conveyance and transit orders, the entry proclamations, the land-border notices, the HHS designation, the eviction moratorium and the Healthcare Emergency Temporary Standard (Exs. PA-033, IN-059, AL-049, CO-051, WV-063, UT-043, NC-029, IL-054, NY-054, NJ-050, CT-046, DE-037, DC-073, RI-037, ME-057, LA-032, MN-039, VA-029, MA-048, PA-036, NV-074, OH-050, IL-037, KY-049, VT-098, CA-029, MI-076, WA-065, WA-072, OR-043, NM-057, NM-060, NY-133, CT-045, RI-071, WA-070, NV-039, CA-024, FED-020, FED-051, FED-208, FED-232, FED-255, SEC-07-036, FED-025, FED-080 and the exhibits collected above), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in the retail trade throughout the United States. They did so by holding the sales floor under caps and masked-entry conditions through their stepped expiry, by conditioning every retail workplace in the standard States, and by keeping the border, the commute and the customer under federal and State orders on every day of the quarter.

The third quarter of 2021

Between July 1 and September 30, 2021, the operation of the retail trade 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 rationed the goods on the industry's shelves and fixed the prices at which they could be sold, governed the commute of its transit-dependent workforce, closed the border to its cross-border customers and suppliers, suspended the entry of its foreign visitors, targeted its stores for federal inspection and conditioned every retail workplace in California, Oregon, Virginia, Washington and New York; orders issued inside the quarter reinstated, at every store in six States and the District of Columbia and in dozens of the largest cities and counties, the airborne-transmission control of universal indoor face coverings with the business as its enforcer, kept it in Hawaii and, until their universal orders or through the quarter, kept the unvaccinated-patron masking and verification rules of seven jurisdictions (California, New York, Connecticut, Rhode Island, Washington, New Mexico and Nevada), conditioned entry to the entertainment and dining tenants of every mall in New York City, San Francisco, New Orleans and Honolulu on proof of vaccination, and masked and quarantined the children of the workforce in more than twenty States. 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.

Letter 105C, form language on the suspension prong, letters issued since 2024

What the statute asks

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)."¹⁵² Congress enacted that clause for this quarter on March 11, 2021, five weeks after the federal conveyance order took effect and while retail capacity orders governed thirty-one jurisdictions, and on November 15, 2021 it terminated the following quarter and left this one in place.¹⁵³ The Notice's favorable provisions carry into the quarter by Notice 2021-49, and the Notice's own words confirm the result: a modification required by a governmental order "is considered to be a partial suspension of business operations due to a governmental order"; "limiting occupancy to provide for social distancing" and "requiring employees and customers to wear face coverings" are modifications "required by a governmental order as a condition of reopening a physical space for business or service to the public"; an employer that "reduces its operating hours due to a governmental order is considered to have partially suspended its operations"; a national chain closed or conditioned in some jurisdictions is eligible "with respect to all of its operations in all locations"; and an employer suspended "during a portion of a calendar quarter is an eligible employer for the entire calendar quarter."¹⁵⁴ The nominal-effect sentence that follows Q&A-17's rule is the United States' own persuasive gloss, without force of law, and the instruments in subpart B satisfy it many times over as a matter of their own terms.

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

B-1. The HHS scarce-materials designation (Ex. SEC-07-031)

Issuer: the Secretary of Health and Human Services, exercising the President's authority under section 102 of the Defense Production Act, 50 U.S.C. § 4512, delegated by Executive Order 13910 (Ex. FED-071). Dates: the original designation effective March 25, 2020 (Ex. SEC-07-006); the extension of July 23, 2020 (Ex. SEC-07-034), its correction of December 23, 2020 fixing expiry at January 19, 2021 (Ex. SEC-07-035), and the extension of February 1, 2021 to June 30, 2021 (Ex. SEC-07-036); the extension of July 7, 2021, 86 Fed. Reg. 35810, reciting effect from July 1, 2021 "through November 15, 2021." Operative clause: the designated materials (respirators, surgical and other face masks, gloves, gowns, sanitizers, disinfectants, ventilator components and, from February 2021, syringes) may not be accumulated by any person "in excess of the reasonable demands of business, personal, or home consumption" or "for the purpose of resale at prices in excess of prevailing market prices." Enforcement: criminal, under 50 U.S.C. § 4513, prosecuted by the Department of Justice. Status: in force July 1 and September 30, 2021. Functions: SF and CU (the quantity a store may hold and the price it may charge for designated goods), ST (inventory), SC (allocation).¹⁵⁵ It answers, by itself and for every retailer of personal protective equipment, sanitizer, disinfectant or respirators, the sentence "no government orders were in effect" for this quarter.

B-2. The federal conveyance order and its directives (Exs. FED-020, FED-051, FED-052)

Issuer: the Centers for Disease Control and Prevention under 42 U.S.C. § 264; the Transportation Security Administration under 49 U.S.C. § 114(l)(2). Dates: order effective 11:59 p.m. February 1, 2021, "until further notice"; Security Directive 1582/84-21-01A (announced April 30, 2021; effective May 12, expiring September 13, 2021) and 1582/84-21-01B (announced August 20, 2021; effective September 14, 2021 to January 18, 2022); the aviation directives and the TSOB ratification of April 20, 2021 (Ex. FED-056). Operative clause: "Persons must wear masks over the mouth and nose when traveling on conveyances into and within the United States"; every operator "must require all persons onboard to wear masks for the duration of travel"; operators must give notice that "Federal law requires wearing a mask," refuse boarding and remove violators. The order is an airborne-transmission control on every conveyance and transportation hub, and its directives placed the duties of notice, refusal of boarding and removal on the operators. Enforcement: criminal fines under 18 U.S.C. §§ 3559 and 3571 and 42 U.S.C. § 271. Status: in force July 1 and September 30, 2021. Functions: WF (every employee who commuted by bus, rail, ferry or rideshare), SC (multi-occupant commercial conveyances), CB (every customer who reached the store by transit).¹⁵⁶

B-3. The entry proclamations and the land-border notices (Exs. FED-207, FED-208, FED-232, FED-255, FED-233, FED-256, FED-234, FED-257, FED-235, FED-258)

Issuer: the President under 8 U.S.C. § 1182(f); the Secretary of Homeland Security under 19 U.S.C. § 1318(b). Dates and clauses: Proclamation 10143 (January 25, 2021) suspended the entry "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" and South Africa; Proclamation 10199 (effective May 4, 2021) added India; both ran to their revocation effective November 8, 2021 (Ex. FED-209). The land-border notifications of June 23, 2021 prohibited non-essential travel "at 12 a.m. Eastern Daylight Time (EDT) on June 22, 2021" through "11:59 p.m. EDT on July 21, 2021"; those of July 22 (to August 21), August 23 (to September 21) and September 22, 2021 (to October 21) continued it without a day's interruption. The CDC's inbound-testing order barred the introduction of any aircraft passenger from any foreign country without a negative test or documentation of recovery (Ex. FED-042). Status: in force July 1 and September 30, 2021. Functions: CB (the cross-border shopper of every border State and the foreign visitor of every tourist market), SC (buying trips, vendor visits and land freight escorts), MK (trade shows and buying markets).¹⁵⁷

B-4. The federal workplace instruments (Exs. AGY-FED-LABOR-IMMIGRATION-088, FED-083, FED-080, FED-272, FED-278)

OSHA's Revised National Emphasis Program, DIR 2021-03, effective July 7, 2021, names supermarkets and other grocery stores (NAICS 445110), department stores (452210) and warehouse clubs and supercenters (452311) among the industries targeted for programmed inspection under the general duty clause and existing standards; it is cited as the federal enforcement posture under which every targeted retailer operated and not as an order limiting commerce by itself. OSHA's COVID-19 Healthcare Emergency Temporary Standard, 29 C.F.R. § 1910.502, effective June 21, 2021 with compliance dates of July 6 and July 21, bound every setting "where any employee provides healthcare services or healthcare support services," reaching in-store clinics and vaccination services outside the exception at § 1910.502(a)(2) for the retail dispensing of prescriptions, with duties of screening, distancing, barriers, ventilation, paid medical removal and paid vaccination leave. The Safer Federal Workforce Task Force's Model Safety Principles of July 29, 2021 required masks of all persons in federal buildings in areas of substantial or high transmission, attestation of vaccination status by "employees and onsite contractors," and disclosure by visitors, and governed every retailer's dealings with the federal government as customer and regulator. Status: in force on the dates stated and on September 30, 2021. Functions: ST, OP, HR, SF (in-store clinics).¹⁵⁸

B-5. The eviction and housing instruments (Exs. FED-025, FED-026, FED-364, FED-379, FED-344)

The CDC's extension of June 24, 2021 ran to July 31, 2021 ("shall not evict any covered person"); its order of August 3, 2021 for counties of substantial or high transmission ran until vacated August 26, 2021; FHFA, HUD, VA and USDA barred foreclosure-related evictions through September 30, 2021; the CFPB's Regulation X rule barred foreclosure referrals without procedural safeguards from August 31, 2021. Status: in force on the dates stated. Functions: CB (the customer base's housing stability), ML (mixed-use landlords).¹⁵⁹

B-6. Hawaii (Exs. HI-023, HI-024, HI-025, MET-HNL-031, MET-HNL-032, MET-HNL-033, MET-HNL-035, MET-HNL-037, MET-HNL-052)

Issuer: the Governor under HRS ch. 127A; the Mayors with the Governor's concurrence. The statewide face-covering requirement of the Twenty-First Proclamation (June 7, 2021) and the Emergency Proclamation of August 5, 2021 required a face covering of every customer and employee in every store on every day of the quarter, one of the airborne-transmission controls the proclamations imposed beside the Safe Travels quarantine and, by the proclamation of August 5, an attestation-and-testing regime for State and county employees that took effect August 16; Executive Order 21-05 of August 10, 2021 capped indoor gatherings at ten and outdoor at twenty-five and fixed the conditions of the listed indoor activities, and was restated verbatim as Exhibit F to the Delta Response Proclamation of October 1, 2021 (Ex. HI-029, a post-period instrument cited only for that restatement); the Safe Travels test-or-quarantine condition governed every arriving passenger (Ex. ECO-C-010); Honolulu's Emergency Order 2021-09 (effective July 8) capped gatherings and fixed conditions on designated businesses, its Emergency Order 2021-11 (effective September 13) barred every covered entity from admitting a patron without proof of vaccination or a negative test, and its Proclamation and Emergency Order 2021-13 (effective September 22) with Exhibit B carried the designated-business conditions forward; the Public Health Emergency Rules effective September 15, 2021 governed Maui. Enforcement: misdemeanor under HRS § 127A-29 and the county codes. Status: the statewide face-covering requirement and Safe Travels in force July 1 and September 30; EO 21-05 from August 10; Honolulu's orders from July 8 and September 13. Functions: SF, MK, CB, WF.¹⁶⁰

B-7. The Pacific States

Exhibits: Exs. WA-070, WA-072, WA-078, WA-080, WA-082, WA-084, WA-085, WA-111, OR-043, OR-048, OR-049, OR-045, CA-029, CA-035, CA-024, CA-067, SEC-07-033, CA-034, NV-041, NV-051, NV-038, NV-039, NV-042, NV-043, NV-044. Washington: Proclamation 20-25.14 (July 1, 2021) placed employer duties on every business (¶ 10) and, with the Department of Labor and Industries' rule WAC 296-800-14035, governed every retail workplace; the Secretary of Health's Order 20-03.3 (issued June 29, effective June 30, 2021; Ex. WA-070, amending the chain at Ex. WA-037) required face coverings of the unvaccinated indoors from July 1 to August 22; Order 20-03.4 (issued August 19, effective August 23, 2021) provides that "[e]very person in Washington State must wear a face covering that covers their nose and mouth when they are in a place where any person from outside their household is present," and Proclamation 20-25.15 (effective August 23) placed on every business the duty not to admit an unmasked customer and on every employer the duty to mask every employee at the worksite; Proclamations 20-25.16 and 20-25.17 (September 3 and 13) and Orders 20-03.5 and 20-03.6 (September 13 and 24) extended masking to large outdoor events. Oregon: EO 21-15 (effective 12:01 a.m. June 30, 2021) rescinded the capacity rules and extended the emergency to December 31, 2021; OAR 333-019-1025 (temporary rule filed August 11, effective August 13, 2021) provides that "[i]ndividuals, regardless of vaccination status, are required to wear a mask, face covering or face shield ... when in an indoor space," with the operator's duty to "ensure employees, contractors, and volunteers comply" and to post signs, enforced by civil penalties up to $500 a day, and extended to outdoor spaces August 27; Oregon OSHA renewed its workplace face-covering rule, an occupational-health control on every employer, the same day, and OAR 333-019-1015 (August 2) masked the schools. California: the State Public Health Officer's order of June 11, 2021 made the Department of Public Health's face-covering guidance mandatory by incorporation, and the guidance of July 28, 2021 required masks of unvaccinated persons "in indoor public settings and businesses (examples: retail ...)" and put every business to the choice of verification, self-attestation or universal masking; the Cal/OSHA emergency standard, readopted June 17, 2021, bound every retail workplace to exclusion, testing, notification and ventilation duties; EO N-03-21 kept Penal Code § 396 price limits on retail sales of essentials to September 4, 2021; the K-12 guidance of July 12, 2021 masked every classroom; and the county health officers restored universal indoor face coverings, an airborne-transmission control placed on every indoor workplace with the operator as enforcer, in Los Angeles County (11:59 p.m. July 17, Exs. MET-LA-018, MET-LA-045; revised August 16, effective August 19, Ex. MET-LA-019; the revision of September 17, Ex. MET-LA-020, took effect October 7, 2021, after the quarter, and is cited only as an order issued within it), the City of Los Angeles (July 17 and August 24; Exs. MET-LA-035, MET-LA-036), Pasadena (July 22; Ex. MET-LA-053), Sacramento (July 30; Ex. MET-SAC-015), the six Bay Area counties and Marin (12:01 a.m. August 3; Exs. MET-SFO-010, MET-SFO-071, MET-SFO-049), while San Francisco required proof of vaccination for indoor dining, bars, gyms and entertainment from August 20 (Ex. MET-SFO-011) and Pasadena's Health Officer required face coverings at outdoor mega-events from August 20 and vaccination or a negative test for indoor mega-events of 1,000 or more from September 15 (Exs. MET-LA-054, MET-LA-056). Nevada: Directive 047 (July 27, effective 12:01 a.m. July 30, 2021) required face coverings indoors in substantial- and high-transmission counties, including Clark and Washoe, and Directive 045 § 5 (Ex. NV-039) placed the duty on the business; the Gaming Control Board applied it to every licensee's premises by Industry Notice 2021-71; Directive 044 continued the emergency framework; Directive 048 (August 4) masked the schools; Directives 049 and 050 (August 16 and September 2) conditioned large events on vaccination proof; Clark County required face coverings of employees from July 22 (Exs. MET-LAS-006, MET-LAS-019). Status: each in force September 30, 2021 as stated; Washington's 20-25.14, Oregon's EO 21-15, California's June 11 order and Cal/OSHA standard, and Nevada's Directive 045 in force July 1. Functions: SF, ST, OP, WF, CB, MK.¹⁶¹

B-8. The Mountain West and the Southwest

Exhibits: Exs. NM-060, NM-062, NM-067, NM-070, NM-063, NM-064, NM-066, NM-071, AZ-005, AZ-044, AZ-045, AZ-059, AZ-079, AZ-082, AZ-084, AGY-TRIBAL-020, CO-043, CO-044, CO-045, CO-046, CO-041, CO-053, CO-091, CO-076, MET-DEN-021, MET-DEN-022, MET-DEN-024, MET-DEN-026, MET-DEN-032, MET-DEN-033, UT-051, UT-053, MET-SLC-016, MET-SLC-029, MET-SLC-030, WY-060, WY-061. New Mexico's Public Health Emergency Order of June 30, 2021 lifted the capacity levels effective July 1, kept every business under mandatory COVID-Safe Practices and rapid-response reporting on pain of civil penalties up to $5,000, and required face coverings of the unvaccinated in public settings within those practices; the order of July 30 continued it; the order of August 17, 2021 reinstated universal indoor face coverings within the mandatory practices from August 20; the order of September 15 extended them to at least October 15; EO 2021-046 (July 30, effective August 2) required State employees to vaccinate or test; the Supreme Court's orders of August 9 and 16 masked the courthouses. Arizona's EO 2020-12 preempted local business orders to September 29, 2021, and EO 2021-16 (July 2; Ex. AZ-044) carried EO 2020-12, 2021-05 and 2021-06 to that date, when they expired, so that the Arizona record for the quarter rests on the federal layer, the Navajo Nation's orders (Public Health Emergency Orders 2021-011 and 2021-013 at Yellow Status to August 12, then 2021-017 and 2021-019 at Orange Status from August 12 with masks, gathering limits and 50 percent occupancy for businesses; Exs. AGY-TRIBAL-020, AZ-079, AZ-082, AZ-084), the courthouse orders (Administrative Order 2021-109, July 14) and the State-employee vaccination directive (EO 2021-18, August 16). Colorado's Executive Orders D 2021 122, 124, 125 and 129 renewed the disaster emergency on July 8, July 30, August 6 and September 4; the Fourth Amended Public Health Order 20-38 (Ex. CO-041, July 1 to August 1) and its Fifth and Sixth amendments (Exs. CO-053, CO-091, effective August 1 and September 1), with the Seventh (Ex. CO-054) issued September 30 and effective October 1, 2021, after the quarter, and cited only as issued, kept masks, distancing and capacity conditions, the exposure controls of the order, on the settings they named; Denver adopted each in turn (Exs. MET-DEN-021, MET-DEN-022, MET-DEN-026) and masked schools and child care from August 17 (Ex. MET-DEN-024); Boulder County masked schools from August 10 (Ex. MET-DEN-032) and every indoor public space from 5:00 p.m. September 3 (Ex. MET-DEN-033); San Miguel County's Public Health Agency Order 2021-06 required face coverings in indoor public places from September 2, adopting the State's orders with additional safety requirements (Ex. CO-076). Utah's Judicial Council reinstated courthouse masks July 30 and replaced every court order September 17; Summit County's Public Health Order 2021-01 (issued August 21, effective August 25; Ex. MET-SLC-016) and Salt Lake City's emergency declaration of August 20 masked the schools; Salt Lake City's Executive Order No. 3 (July 28) masked city buildings. The University of Wyoming masked its campus from August 16. Status: New Mexico's June 30 order, Arizona's EO 2020-12, Colorado's D 2021 122 chain and Fourth Amended PHO 20-38, and the Navajo Nation's Yellow Status order in force July 1; New Mexico's August 20 face-covering order, an airborne-transmission control within its mandatory practices, the Navajo Orange Status orders, Denver's and Boulder's orders and the Utah court orders in force September 30. Functions: SF, ST, WF, HR, CB.¹⁶²

B-9. The Gulf and the South

Exhibits: Exs. LA-035, LA-036, LA-037, LA-038, LA-039, LA-040, LA-041, LA-054, MET-MSY-026, MET-MSY-027, MET-MSY-029, MET-MSY-030, MET-MSY-032, MET-MSY-063, MET-MSY-072, TX-035, TX-036, TX-037, TX-044, TX-045, TX-046, TX-053, MET-DFW-028, MET-DFW-030, MET-DFW-031, MET-DFW-038, MET-HOU-038, MET-HOU-039, MET-HOU-052, MET-SAT-064, MET-SAT-066, MET-SAT-067, MET-SAT-068, FL-030, FL-063, FL-032, FL-033, FL-070, GA-043, GA-044, GA-045, GA-046, GA-059, GA-060, GA-050, GA-055, MET-ATL-016, MET-ATL-017, MET-ATL-063, MET-ATL-026, MET-ATL-043, NC-031, NC-058, NC-032, NC-066, MET-CLT-023, MET-CLT-025, MET-CLT-015, MET-CLT-045, MET-CLT-031, AL-052, AL-062, AL-064, AL-084, AL-086, AL-087, AR-017, AR-075, AR-080, TN-034, TN-035, TN-036, TN-051, MET-BNA-076, KY-001, KY-052, KY-053, KY-054, KY-056, KY-057, KY-058, MET-SDF-005, MET-SDF-016, MET-SDF-017, MET-SDF-028, MS-060, SC-058, SC-061, SC-062, SC-055, SC-056, VA-045, VA-037, VA-044, VA-041, VA-042, MD-057, MD-058, MD-060, MD-090, MD-091, MD-093, MET-DCM-023, MET-DCM-024, MET-DCM-025, MET-DCM-044, MET-DCM-052, MET-BAL-017, DE-041, DE-042, DE-043, DE-044, DE-045, DE-066, DE-064, DC-021, DC-057, DC-077, DC-059, DC-060, DC-061. Louisiana: Proclamation 131 JBE 2021 (July 21) continued the public health emergency; Proclamation 137 JBE 2021 (August 2, effective August 4) required a face covering of every person indoors in every business in the State, an airborne-transmission control paired with the business's duty to enforce it and the employer's worksite duties, renewed by 167 JBE 2021 (September 1) and 181 JBE 2021 (September 29, to October 27); Proclamations 145, 168 and 182 JBE 2021 carried the emergency's suspensions and workplace provisions; New Orleans imposed indoor face coverings from 6:00 a.m. July 31 under reopening guidelines that also fixed workplace requirements, and a vaccination-or-test condition on indoor dining, bars, gyms and venues from August 16 with an employee vaccination-or-testing order August 19; Jefferson Parish required indoor face coverings, an airborne-transmission control, from August 4 (Proclamation 13 CLS 2021); the school screening decision tree governed every parent in the workforce from August 3. Texas: GA-38 (July 29, 2021) barred governmental mask and vaccination mandates and vaccination-proof conditions, and GA-37 and GA-39 followed; Dallas County's face-covering orders (airborne-transmission controls with the business as enforcer) of August 11, 12 and 16 were stayed by the Supreme Court of Texas on August 15 and restored August 19; San Antonio's and Bexar County's NW-21 and Fourteenth Addendum (August 10 and 11) and Harris County's school and courthouse orders (August 12 and 17) were litigated under GA-38; the Texas Education Agency's guidance of September 2 governed quarantine in every school; the City of Dallas's federal-and-State orders index (July 30) records the layer in force. Florida: 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," a limit on how every retailer could condition its own sales floor; EO 21-175 (July 30) and Emergency Rules 64DER21-12 and 64DER21-15 (August 6 and September 22) governed school masking and quarantine; the Supreme Court's Administrative Order AOSC21-17 (July 29) governed the courts. Georgia: the Economic Recovery State of Emergency was renewed July 22, August 19 and September 20; EO 08.19.21.03 suspended inconsistent local ordinances and barred compelled business enforcement of local face-covering orders (airborne-transmission controls), which had been issued by Savannah (July 26; August 24) and Atlanta (July 28); Cobb County declared an emergency with a face-covering requirement, an airborne-transmission control on indoor public places, August 19 and renewed it September 17; Directives 21-EX-1 and 21-EX-2 (August 16 and 17) governed hospital capacity; EO 08.30.21.01 suspended hours-of-service and weight rules for the supply chain. North Carolina: EO 224 (July 29) masked Cabinet agencies and required vaccination or testing of State employees from September 1; EO 229 (August 31) continued it; S.L. 2021-130 § 10 governed school masking; EO 230 (August 31) suspended supply-chain rules; Mecklenburg County's Board of Health rule (effective August 31; revised September 8) and the joint proclamation of August 18 required indoor face coverings in Charlotte, an airborne-transmission control on every indoor public place, and Orange County (August 11) and Raleigh (August 13) imposed the same control in their jurisdictions. Alabama terminated its emergency July 6 and declared a new State of Emergency August 13; the Supreme Court's Administrative Order No. 13 (August 20) re-authorized remote proceedings; Birmingham City Schools' mask-mandate update of July 27 governed the city's schools from August 2 (Ex. AL-084); Birmingham's Executive Orders 87-20 (as revised July 29 and September 27, 2021; the exhibit is the September 27 revision) and 88-21 masked city facilities from July 30. Arkansas's EO 21-14 (July 29 to September 27) declared a new emergency and the Department of Health's face-covering guidance and school guidance of July 27 to 30 followed; Act 1002's mask-mandate ban was enjoined August 6 and held unconstitutional September 30. Tennessee's EO 82 (July 30), EO 83 (August 6) and EO 84 (August 16) governed the emergency, health-care and school masking; Shelby County's Health Department reimposed indoor masking countywide, an airborne-transmission control with the business as enforcer, by Health Order No. 25, issued August 27 and effective August 31 (Ex. MET-BNA-076); the Supreme Court's order of August 26 masked the courts. Kentucky's state of emergency (Ex. KY-001) ran through the quarter and was extended by House Joint Resolution 1 (signed September 7, 2021; Ex. KY-056) to January 15, 2022, which also terminated EO 2021-585, while Senate Bill 1 (Ex. KY-057, enacted over the Governor's veto September 9, 2021) voided the school and child-care mask regulations; EO 2021-585 (August 10) and the regulations of August 12 masked the schools and child care to September 9; Administrative Order 2021-27 (August 9) masked the courts; Louisville Metro required a face covering of every person entering its buildings and vehicles from August 2 (Ex. MET-SDF-017; the Metro Government's release of August 3, Ex. MET-SDF-028, describes the adoption and is cited as context, not as an order), and its Metro Council adopted interim COVID-19 operating practices on August 12 (Ex. MET-SDF-005). South Carolina's Columbia (August 4) and Richland County (adopted September 14, effective 6:00 a.m. September 15) ordinances masked schools and county premises; Jackson, Mississippi's executive orders of August 16, 23 and September 20, 2021 masked or vaccinated the city's employees (Ex. MS-060); the trial-court orders of July 30 and August 27 governed the courts. Virginia's Department of Labor and Industry standard, 16VAC25-220, bound every retail workplace on every day and was amended September 8; the Health Commissioner's order of August 12 masked every school; Executive Directive 18 (August 5) required State employees to vaccinate or test from September 1; the judicial emergency was extended August 4 and September 20. Maryland's Department of Health orders of August 5, 18 and September 8 required vaccination of State congregate-facility, hospital and nursing-home staff; the Judiciary's orders of August 6 masked every courthouse; the K-12 guidance of July 23 governed the schools; Montgomery County's Board of Health regulation required face coverings in indoor public places from 12:00 a.m. August 7 (Exs. MET-DCM-023, MET-DCM-024, MET-DCM-025); Baltimore City's Health Commissioner required face coverings in indoor public places from August 10, 2021, the date of the order and of its effect (Ex. MET-BAL-017), with the business's duty to enforce them; the Fairfax County Circuit Court (Ex. MET-DCM-044) and Alexandria (Ex. MET-DCM-052) masked their courthouses. Delaware terminated its State of Emergency July 13 and declared a Public Health Emergency at 11:59 p.m. July 12, extended August 10 and September 8; the emergency orders of August 13 masked every school and child-care setting from August 16; the orders of September 10 and the announcement of August 12 required vaccination or testing of long-term-care, hospital and home-health staff from September 30. The District's Mayor's Order 2021-097 (July 29, effective 5:00 a.m. July 31) provides that "[a]ll persons must wear masks indoors as prescribed by DC Health guidance and regulations," with DC Health's mandatory guidance of July 30; Mayor's Order 2021-096 extended the public emergency; the Superior Court and Court of Appeals orders of July 14, August 31 and September 1 governed the courts. Status: Florida's § 381.00316 (context; see subpart C), Virginia's standard, Georgia's and Louisiana's emergencies, Kentucky's emergency and Texas's disaster declaration in force July 1; Louisiana's 137, 167 and 181 JBE 2021, the District's Mayor's Order 2021-097, New Orleans's, Jefferson Parish's, Montgomery County's, Baltimore's, Charlotte's, Orange County's, Birmingham's, Columbia's and Richland County's orders, Texas GA-38 (context; see subpart C), Georgia's EO 08.19.21.03, North Carolina's EO 229, Alabama's August 13 emergency, Delaware's Public Health Emergency and the school and health-care orders of August and September in force September 30. Functions: SF, ST, WF, CB, HR, OP.¹⁶³

B-10. The Midwest

Exhibits: Exs. IL-039, IL-040, IL-041, IL-042, IL-043, IL-044, IL-045, IL-046, IL-072, ECO-C-091, MET-CHI-026, MET-CHI-031, MET-CHI-041, MET-CHI-049, MET-CHI-032, MET-STL-021, MET-STL-022, MET-STL-069, MET-KC-002, MET-KC-003, MET-KC-004, MET-KC-006, MET-KC-045, MET-KC-046, MO-018, MO-020, OH-084, OH-094, OH-095, MET-CLE-009, MET-CLE-010, MET-CLE-025, MET-CMH-041, MET-CMH-043, MET-CMH-044, MET-CMH-046, MET-CMH-048, MET-CMH-050, MET-CMH-052, MET-CIN-007, IN-067, IN-068, IN-069, IN-070, IN-071, IN-086, IN-092, IN-093, MET-IND-054, MI-081, MI-083, MI-084, MI-085, MET-DET-005, MET-DET-013, MET-DET-015, MET-DET-039, MET-MKE-023, MET-MKE-024, MET-MKE-070, MN-044, MN-045, MN-054, MET-MSP-041, MET-MSP-044, MET-MSP-047, MET-MSP-062, MET-MSP-020, IA-039, IA-040, IA-041, IA-056, IA-057, IA-067, IA-076, KS-057, KS-074, KS-095, NE-080, NE-081, NE-032, ND-083, SD-082, SD-088. Illinois: the disaster proclamation was renewed monthly (July 23, August 20, September 17); EO 2021-18 (August 4) masked every school and day-care center; EO 2021-20 (August 26) ordered that from 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," the airborne-transmission control of the Delta period, and EO 2021-22 (September 3) restated it with the employer's duty to enforce masking on staff and the health-care and school vaccination requirements; EO 2021-24 and 2021-25 (September 17 and 21) governed school quarantine; the eviction moratorium chain ran to October 3; Chicago's Public Health Order 2021-1 (August 20), Cook County's Order 2021-10 (August 23) and Oak Park's order (August 6) required face coverings in every store in the metropolitan area, with the operator's duty to enforce them; Chicago's Emergency Travel Order stood as a tiered advisory. Missouri: St. Louis City and County required face coverings in indoor public places from 12:01 a.m. July 26 and continued the orders August 30; Kansas City's order took effect August 2; Ordinance 210694 (August 19; Exs. MET-KC-002, MET-KC-003) carried the requirement to 3:00 p.m. September 23, and Ordinance 210853 (passed September 23; Ex. MET-KC-006) carried it to October 7, 2021; Jackson County's Health Order of August 6, effective August 9 (Ex. MET-KC-045), ran to October 7 (Ex. MET-KC-046); the State emergency, extended to August 31 by EO 21-07 (Ex. MO-018), was terminated August 27 by EO 21-09, which kept the health-care staffing emergency in force to December 31, 2021 (Ex. MO-020). Ohio: House Bill 244 (Ex. OH-064; signed July 14, 2021, effective October 13, 2021, after the quarter, and cited only as enacted) governed vaccination requirements; the quarantine guidance of August 31 governed the schools; Cuyahoga County's Executive Order EO2021-0016 (August 3) masked county facilities and its Board of Health issued its masking requirements August 4; Columbus renewed its public health emergency July 23 and September 21, issued a mask advisory August 5, masked the courts August 5 and 6, and by Executive Order 2021-01 (September 10) and Ordinance 2388-2021 (effective 8:00 a.m. September 14) required face coverings in every indoor place open to the public, with a civil penalty and the business as enforcer, with Bexley and Worthington following; Dayton's ordinance took effect 8:00 a.m. September 17 (Exs. OH-094, OH-095, press reports of the ordinance's adoption and text); Hamilton County's courts masked from August 11. Indiana: the public health disaster emergency was renewed August 1 and August 31 (EOs 21-18 and 21-22; Exs. IN-067, IN-069), and EO 21-26 (Ex. IN-072), signed September 30, took effect October 1, 2021, after the quarter; EOs 21-19, 21-23 and 21-24 (Exs. IN-068, IN-070, IN-071) carried the Department of Health's isolation and quarantine control measures (given executive-order status July 19) and school and health-care provisions from August 1 through September 30, and EO 21-27 (Ex. IN-073), signed September 30 and effective October 1, continued them after the quarter; Monroe County's Public Health Regulation and Order required face coverings in indoor public places from 8:00 a.m. August 5 to September 30 and beyond; the Marion Circuit Court's order of August 16 masked the courts. Michigan: the county health officers of Ottawa, Kalamazoo and Berrien Counties ordered school masking and quarantine from August 6, 18 and 20 and September 6 (Exs. MI-081, MI-083, MI-084, MI-085); Oakland County and Wayne County masked schools August 24 and 27, and the Detroit Health Department declared a continued emergency September 1; SMART's transit playbook carried the federal conveyance order's airborne-transmission controls onto every bus (the agency's own notice, cited as context). Wisconsin: Madison and Dane County's Face Covering Emergency Orders (effective 12:01 a.m. August 19 and September 10) required face coverings in every indoor public place, with the business's duty to enforce them; Milwaukee's school guidance of August 5 governed the workforce's children. Minnesota: Saint Paul's Emergency Executive Order 2021-33 (August 3; Ex. MET-MSP-041) required face coverings at City-controlled property regardless of vaccination and was extended September 9 (Ex. MET-MSP-044); EEOs 2021-34 to 2021-37 continued the city's emergency and its closures and curfews to the quarter's end; Minneapolis's City Council continued its local emergency and adopted a vaccination-or-testing policy for city employees September 10 (Ex. MET-MSP-020); Hennepin County required face coverings of every visitor to county facilities in August (Ex. MET-MSP-047) and the University of Minnesota's face-covering protocol of August 2 governed its campuses (Ex. MET-MSP-062); the State's vaccination-or-testing policy for State employees was announced August 11 for September 8; the Judicial Branch's order of July 30 governed the courts. Iowa: the disaster emergency was renewed July 23, August 19 and September 17; Iowa City's face-covering order, an airborne-transmission control with the business as enforcer, took effect 11:59 p.m. August 19; Linn County masked its facilities August 9; the Supreme Court's order of August 27 masked the courts; a federal court enjoined the school-mask ban September 13. Kansas: the Department of Health's travel and exposure quarantine mandate ran through the quarter; Douglas County's emergency order required indoor face coverings, an airborne-transmission control, from 12:01 a.m. August 19 to September 22; the Supreme Court's administrative order governed the courts. Nebraska: Lancaster County's Directed Health Measure required face coverings in indoor public places from August 26 to September 30 and was extended to October 28 (recorded from the Lincoln-Lancaster County Health Department's announcements as reported, Exs. NE-080, NE-081); the assisted-living masking guidance of July 14 governed the health-care counterparties. North Dakota's and South Dakota's universities and courts masked (Exs. ND-083, SD-088), and Brookings adopted its mask resolution August 24 (Ex. SD-082). Status: the Illinois disaster proclamation, the Illinois eviction chain, Missouri's emergency (to August 27), Indiana's emergency and Iowa's disaster emergency in force July 1; the Illinois, Chicago, Cook County, Oak Park, St. Louis, Kansas City, Columbus, Dayton, Monroe County, Madison and Dane County, Lancaster County and Douglas County (to September 22) face-covering orders, airborne-transmission controls with the business as enforcer, in force September 30. Functions: SF, ST, WF, CB, HR, OP.¹⁶⁴

B-11. The Northeast

Exhibits: Exs. NY-133, NY-073, NY-071, NY-072, NY-075, NY-076, NY-135, ECO-B-120, NY-129, NY-130, NY-132, NY-085, NY-086, MET-NYC-017, MET-NYC-018, MET-NYC-019, MET-NYC-021, MET-NYC-035, MET-NYC-036, MET-NYC-040, MET-NYC-046, NJ-050, NJ-051, NJ-053, NJ-055, NJ-056, NJ-057, NJ-058, NJ-086, PA-040, PA-042, PA-043, MET-PHL-019, MET-PHL-020, MET-PHL-021, MET-PHL-065, MET-PHL-071, MET-PIT-036, MET-PIT-055, MA-067, MA-068, MA-069, MA-070, MA-071, MET-BOS-013, MET-BOS-014, MET-BOS-036, MET-BOS-063, MET-BOS-130, MET-BOS-150, MET-BOS-040, MET-BOS-066, CT-045, CT-048, CT-049, CT-050, CT-051, CT-052, CT-054, CT-055, CT-056, CT-057, CT-058, RI-071, RI-049, RI-052, RI-053, RI-055, RI-059, RI-060, RI-063, RI-066, RI-072, RI-084, RI-085, RI-099, RI-100, ME-061, VT-044, VT-059, VT-060, VT-061, VT-072, VT-074, NH-066. New York: 10 NYCRR Subpart 66-3, readopted June 23, 2021, required every unvaccinated person to be masked in indoor public places and every unvaccinated employee in contact with the public to be masked at all times at the employer's expense, an occupational-health and airborne-transmission control the employer was made to supply, to August 27, 2021, when the Commissioner's Determination on Indoor Masking under 10 NYCRR 2.60 succeeded it; 10 NYCRR 2.61 (August 26) required vaccination of health-care workers; 10 NYCRR 2.9 and 2.62 and the Commissioner's Determination on Testing (September 2) governed the schools; Subpart 66-4 (July 30) governed nursing homes; the HERO Act (Labor Law § 218-b) required every private employer's airborne infectious disease exposure prevention plan by August 5, 2021, and the Commissioner's designation of September 6, 2021 activated every plan (Exs. NY-129, NY-130, NY-132); the commercial and residential eviction stays ran to August 31, 2021 and, from September 2, to January 15, 2022 (Exs. NY-085, NY-086); New York City's Emergency Executive Order 225 (August 16, effective August 17; penalties from September 13), restated by EEOs 228, 239 and 250, barred every covered indoor entertainment, recreation, dining and fitness premises, including every such tenant of every mall, from admitting a patron, employee or contractor without proof of vaccination, and the Commissioner of Health's orders of July 21, August 10 and August 24 required vaccination or testing of health-care, city and school workers. New Jersey: the State of Emergency continued through the quarter under P.L. 2021, c. 103; EO 242 ¶ 18 preserved municipal and county power to impose indoor mask requirements and EO 242 and 243 carried EO 192's worksite rules for unvaccinated employees; EO 251 (August 6, effective August 9) masked every school; EO 252 (August 6) required vaccination or weekly testing of health-care and congregate-setting workers by September 7; EO 253 (August 23) extended the requirement to school workers; EO 264 (September 20) reached child-care workers; the Department of Health's rule-waiver notice of August 19 ran to January 11, 2022. Pennsylvania: Act 21 of 2021 continued the Commonwealth's regulatory suspensions to September 30, 2021 and Act 73 (September 30) to March 31, 2022; the Acting Secretary of Health's order of August 31 masked every school from September 7; Philadelphia's amendment to the Full Reopening Order (effective 12:01 a.m. August 12) required masks in "[a]ny indoor setting, unless a business operating at the setting requires everyone on site to be vaccinated," with the proof-of-vaccination sign and the health-care and higher-education vaccine regulation of August 16, and its contractor notice of September 14 required vaccination and masking of every vendor and service provider on city premises; Pittsburgh's Ordinance 23 of 2021 (July 27) created temporary COVID-19 paid sick leave and the Fifth Judicial District masked its courts from August 10. Massachusetts: the Public Health Emergency Order No. 2021-4 (August 4) required vaccination of long-term-care staff; Executive Order 595 (August 19) required State employees to show proof of vaccination by October 17; 105 CMR 159.000 and 101 CMR 23.00 (September 8 and August 13) carried the vaccination requirements into regulation; the Department of Elementary and Secondary Education's mask requirement took effect August 25; Boston's Order Requiring Face Coverings (August 20, effective 8:00 a.m. August 27) and the Licensing Board's advisory required face coverings in every indoor business, an airborne-transmission control with the operator's duty to enforce it, Somerville's order preceded it (August 20) and Brookline's, Cambridge's and Worcester's followed (August 27; September 3 to 7), Boston established an eviction moratorium August 31 and extended it September 9, and Boston's vaccination-or-testing policy for city employees phased in from September 20. Connecticut: the emergency declarations were renewed July 13 (effective July 21) and September 27; EO 13 (July 19) carried the State's orders to September 30; EO 13A (August 5) required masks of unvaccinated persons indoors, an airborne-transmission control enforced on the premises, and authorized municipal universal mandates; the Department of Public Health's order of August 7 required universal masking in the settings it named; EO 13B, 13D, 13F and 13G (August 6 to September 10) required vaccination or testing of health-care, State, school and child-care workers by September 27; EO 13C and 13E governed nursing-home testing and staffing; EO 14A (September 30) continued the regime to February 15, 2022. Rhode Island: EO 21-78 and 21-84 continued the quarantine and isolation orders to September 1; EO 21-79 and 21-85 continued the emergency; EO 21-87 (August 19) and 21-97 (September 17) masked every school; EO 21-93, 21-94 and 21-100 (September 1 to 30) carried quarantine, masking and vaccination requirements; the Department of Health's emergency regulation 216-RICR-20-15-8 (August 17) required vaccination of health-care workers, and its regulation 216-RICR-50-15-7 (Ex. RI-071) required face coverings of the unvaccinated in every establishment to August 31 as one of the exposure controls of its Safe Activities rules; the Supreme Court's Executive Orders 2021-04 and 2021-06 (July 20 and August 13) masked the courts; Providence's Executive Orders 2021-8 and 2021-9 (July 15 and August 14) continued the city's emergency and masked its facilities. Maine's Chapter 264 (August 12) required vaccination of health-care workers; Vermont's EO 06-21 governed the post-emergency period and its Judiciary's Administrative Directive PG-13 and Administrative Order 49 (July 6 and September 1) governed the courts, with the Agency of Education's masking memorandum of August 18 and contact-tracing memorandum of August 19 governing the schools; New Hampshire's School and Childcare Toolkit (August 11) governed quarantine. Status: Subpart 66-3 (to August 27), New Jersey's EO 242 and 243 and P.L. 2021, c. 103, Pennsylvania's Act 21, Connecticut's EO 12A and emergency declarations, Rhode Island's quarantine and isolation orders and Vermont's EO 06-21 in force July 1; the Commissioner's Determination (from August 27), Key to NYC (from August 17), the New Jersey, Pennsylvania, Connecticut, Rhode Island and Massachusetts school and worker orders of August and September, Philadelphia's August 12 amendment, Boston's August 27 order and EO 14A in force September 30. Functions: SF, ST, OP, WF, CB, ML, MK, HR.¹⁶⁵

B-12. The territories (Exs. AGY-TERRITORIES-034, AGY-TERRITORIES-035, AGY-TERRITORIES-036, AGY-TERRITORIES-110)

Puerto Rico's Administrative Bulletin OE-2021-063 (August 11, effective August 23) barred unvaccinated or untested patrons and required vaccination or weekly testing of the employees of the premises it named; OE-2021-064 (effective August 30) extended the regime to grocery stores and convenience stores among others; OE-2021-065 (effective September 2) ordered masks in all indoor spaces and set closing hours of midnight to 5:00 a.m.; Guam's Executive Order 2021-19 (August 20) required proof of vaccination for entry to the premises it named (Exs. AGY-TERRITORIES-035, AGY-TERRITORIES-036, AGY-TERRITORIES-110 are OE-2021-064, OE-2021-065 and Guam's order). Status: OE-2021-063 in force from August 23 to September 30. Functions: SF, HR, CB.¹⁶⁶

B-13. The workforce and counterparty orders

The school and child-care mask and quarantine orders of the 2021-22 year governed the children of the retail workforce with force of law in New Jersey (EO 251, August 9; Ex. NJ-055), Kentucky (EO 2021-585, August 10; Ex. KY-052), Connecticut (EO 13A, August 5; Ex. CT-050), Rhode Island (EO 21-87, August 19; Ex. RI-055), New York (10 NYCRR 2.60, August 27; Ex. NY-073), Illinois (EO 2021-18, August 4; Ex. IL-040), Pennsylvania (September 7; Ex. PA-042), California (July 12; Ex. CA-034), Delaware (August 16; Exs. DE-044, DE-045, DE-066), Louisiana (August 4; Ex. LA-036), Maryland (Ex. MD-093), Massachusetts (August 25; Ex. MA-071), Nevada (Directive 048, August 4; Ex. NV-042), New Mexico (August 20; Ex. NM-067), Washington (Proclamation 20-09.4, July 30; Ex. WA-075), Oregon (OAR 333-019-1015, August 2; Ex. OR-045), Hawaii (August 3; Ex. HI-043), Virginia (August 12; Ex. VA-044), the District (July 31; Ex. DC-057) and Indiana (Ex. IN-071), and by county and city in Michigan, Colorado, Utah, Texas, Alaska and Tennessee (Exs. MI-084, MET-DEN-032, MET-SLC-016, MET-HOU-038, AK-093, TN-036); the quarantine and isolation orders of Los Angeles County (Exs. MET-LA-021, MET-LA-022, MET-LA-068, MET-LA-069), San Diego County (Ex. MET-SAN-024), Indiana (Ex. IN-092), Rhode Island (Exs. RI-049, RI-052) and Kansas (Ex. KS-057) removed exposed employees from the floor; the health-care-worker vaccination orders of California, New York, New Jersey, Connecticut, Illinois, Washington, Maryland, Delaware, Rhode Island, Maine and Los Angeles County governed the hospitals and clinics that are the industry's health-care counterparties and the in-store clinics that are its own (Exs. CA-030, CA-031, NY-071, NJ-056, CT-051, IL-042, WA-077, MD-058, DE-064, RI-072, ME-061, MET-LA-023); the eviction stays of Washington (Proclamation 21-09, July 1 to September 30; Ex. ECO-C-084), California (AB 832; Ex. ECO-C-101), Illinois (Ex. ECO-C-091), New Jersey (EO 106; Ex. ECO-C-081) and New York governed the industry's customers and its mixed-use landlords; and the court orders of the Supreme Court of Texas (Thirty-Eighth and Fortieth Emergency Orders, July 1 to October 1; Exs. ECO-C-069, ECO-C-070) and the State and federal courts named in the layers section governed its landlord-tenant, collection and licensing matters.

B-14. The predicates

The national emergency (continued February 24, 2021; Ex. FED-002), the public health emergency (renewed effective July 20, 2021; Ex. FED-016) and the State emergency declarations in force in thirty-five jurisdictions on July 2 and twenty-five on September 21, 2021 (Exs. LAW-246, LAW-247) are cited as the record that every level of government treated the emergency as continuing on every day of the quarter, and never as orders.¹⁶⁷

C. How the instruments reached the functions

SF. From July 1 the sales floor of every retailer of designated goods was governed by a federal quantity-and-price order; from July 17 in Los Angeles County, July 26 in St. Louis, July 30 in Nevada's populous counties and Sacramento, July 31 in the District and New Orleans, August 2 in Kansas City, August 3 in the Bay Area, August 4 in Louisiana, August 7 in Montgomery County, August 10 in Baltimore, August 12 in Philadelphia, August 13 in Oregon, August 18 in Charlotte, August 19 in Madison and Dane County, August 20 in New Mexico, Chicago and Somerville, August 23 in Washington and Cook County, August 27 in Boston, August 30 in Illinois, September 3 in Boulder County and Cambridge, September 7 in King County and Worcester and September 14 in Columbus, every customer and every employee on every sales floor in those jurisdictions was placed under airborne-transmission controls by order, a face covering required of each of them, the retailer was made the enforcer at its own door, and in Washington the business was placed under a duty not to admit the unmasked; in Hawaii on every day, and in California, New York, Connecticut, Rhode Island, Washington (to August 22), New Mexico (to August 19) and Nevada for every unvaccinated customer, the same conditions ran from July 1. 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."¹⁶⁸

CU and ST. The curbside and fulfillment channel and the stockroom operated under the Cal/OSHA, Oregon OSHA, Virginia, Washington and New York workplace standards and plans on every day in those States, under OSHA's programmed-inspection targeting of the retail NAICS codes from July 7, under the HHS designation's limits on the goods they held, and under the quarantine and isolation orders that removed exposed employees from the dock and the floor.

SC. The land borders were closed to non-essential travel on every day of the quarter; the entry suspensions of six countries and the Schengen Area ran on every day; the HHS designation allocated designated goods away from retail accumulation; the CDC and Captain of the Port orders described in the Coast Guard's bulletins and the Federal Maritime Commission's supplemental order and investigation governed the ports through which the holiday inventory moved; and the President's supply-chain instruments and the Commerce Department's semiconductor notice of September 24 record the condition of the inputs.

ML and MK. Key to NYC, San Francisco's order, New Orleans's guidelines and Honolulu's Safe Access Oahu conditioned entry to the entertainment, dining and fitness tenants of every mall in those cities on proof of vaccination; Hawaii's EO 21-05 capped every indoor gathering at ten; Nevada's Directives 049 and 050 and Los Angeles County's and Pasadena's mega-event orders conditioned every large event; the New York and Washington eviction stays and California's local authority governed the landlord.

HR, OP and WF. The National Emphasis Program, the HERO Act plans, the Cal/OSHA, Oregon OSHA, Virginia and Washington standards and New Jersey's EO 192 rules governed screening, training, exclusion and record-keeping in every retail workplace in those States; the Task Force rules governed every visit to a federal customer; the conveyance order governed every transit commute; the school and child-care mask and quarantine orders of more than twenty States governed the availability of the workforce's parents; Puerto Rico's and New Orleans's employee vaccination-or-test orders governed who could work.

CB. The land-border notices, the entry proclamations, the testing order and Hawaii's Safe Travels fixed who could travel to the store; the masked-entry and exposure-control orders fixed the conditions of every resident customer's entry; the HHS designation and California's EO N-03-21 fixed the price of designated goods; Florida's § 381.00316, Texas GA-38 and North Dakota's HB 1465 (Ex. ND-082) fixed, from the other direction, what a retailer could and could not require at its own door; they are cited as the record that the retail door remained a subject of governmental command on every day of the quarter and as the instruments under which the Texas county orders were litigated, not as suspending orders.

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.¹⁶⁹ The Notice itself recognizes both halves of the point: an employer suspended "during a portion of a calendar quarter is an eligible employer for the entire calendar quarter," and a transition period follows a change compelled by order.¹⁷⁰

The arithmetic

The orders' own phase steps fix how long the restoration took, and the dates are these. A New Jersey store closed to the public at 9:00 p.m. March 21, 2020 reopened at 50 percent June 15, 2020 under exposure-control conditions of face coverings and gloves, ran under municipal curfews from November 12, 2020, was released from its percentage cap May 19, 2021 and from the public face-covering requirement May 28, 2021, and from that date operated under EO 242's preserved municipal mask power and EO 192's worksite rules; the third quarter began forty-three days after the last cap step and thirty-four days after the face-covering release.¹⁷¹ A New York store reduced to one employee on March 22, 2020 reopened for curbside May 15 and in-store at 50 percent May 29, 2020, its mall reopened July 10 (upstate) or September 9, 2020 (New York City), it was released from its cap May 19, 2021, masked its unvaccinated customers and employees under Subpart 66-3 from June 23 to August 27, 2021, and, if it housed a dining, fitness or entertainment tenant in New York City, checked vaccination at that tenant's door from August 17, 2021; the third quarter began forty-three days after the last cap step and fifty-seven days before the unvaccinated-masking control changed form.¹⁷² A Pennsylvania store closed March 19, 2020 reopened at 50 percent under the Worker Safety Order's infection-prevention conditions April 19 (essential) or in the yellow phase (May 8 to June 5, 2020), ran at 75 percent in the green phase, was cut to 50 percent from December 12, 2020 to January 4, 2021, returned to 75 percent April 4, 2021 and was released 12:01 a.m. May 31, 2021; the third quarter began thirty-one days later, and in Philadelphia the face-covering order, an airborne-transmission control with the business as enforcer, returned August 12.¹⁷³ A California store closed March 19, 2020 reopened for curbside May 8 and in-store at 25 or 50 percent by tier from August 31, 2020, was cut to 20 percent from December 6, 2020 to January 25, 2021, was released June 15, 2021 into an unvaccinated-masking regime with a verification duty and the Cal/OSHA standard, and in Los Angeles County was placed under the County's universal face-covering control again from 11:59 p.m. July 17, 2021; the third quarter began sixteen days after the last cap step and the county order came seventeen days into it.¹⁷⁴ A Washington store confined to minimum basic operations March 25, 2020 reopened at 30 percent in Phase 2, was cut to 25 percent with its food court closed November 17, 2020, ran at 50 percent from March 22, 2021, was released at the end of June 30, 2021 into an unvaccinated-masking regime and an employer-duty proclamation, and was placed under the State's universal face-covering control, with its business duty of admission, again from August 23; the third quarter began the day after the last cap step.¹⁷⁵ A New Mexico store closed March 24, 2020 reopened at 25 percent May 16, was closed again November 16 to December 1, 2020, ran under county levels of 25 to 75 percent to June 30, 2021, was released July 1, 2021, the first day of the quarter, into mandatory COVID-Safe Practices with $5,000 penalties, and was placed under universal face coverings within those practices again from August 20.¹⁷⁶ A Michigan store closed March 24, 2020 admitted four customers per 1,000 square feet with its garden, furniture, carpet and paint departments cordoned from April 9, reopened by appointment May 26 and at 25 percent June 4, 2020, was cut to 30 percent November 18, 2020, ran at 50 percent from March 5, 2021 and was released June 22, 2021; the third quarter began nine days later.¹⁷⁷ An Ohio store closed March 23, 2020 reopened May 12 under mandatory checklists, was conditioned from November 16, 2020 on a compliance inspection with a closure sanction and closed at 10:00 p.m. from November 19, 2020 to February 11, 2021, and was released June 2, 2021; the third quarter began twenty-nine days later, and Columbus placed every store under a face-covering ordinance, with a civil penalty, again September 14.¹⁷⁸ In every case the last capacity step took effect between May 19 and July 1, 2021, and the third quarter began on the day of the last step (New Mexico) or within one to forty-three days of it. The staff laid off or reassigned in March 2020, the seasonal hiring not made in the winter of 2020, the inventory not ordered for a floor capped at 25 percent, the mall tenancies surrendered when the anchors closed, the departments cordoned and the events cancelled were not restored on the day the last cap lapsed; the orders' own steps fix the period of the restoration, and the third quarter of 2021 sat inside it. An employer whose operation was ordered suspended through June 30 was not walking normally on July 1.

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 (the designation, the conveyance order, the border and entry orders, the workplace standards, Hawaii's regime, the unvaccinated-patron masking and verification rules); (2) the orders issued inside it (the seven statewide and dozens of local face-covering reinstatements, airborne-transmission controls with the business as enforcer, the vaccination-proof orders, the school and quarantine orders); (3) the counterparty orders in force in the quarter (the plants and ports, the landlords, the schools, the courts, the hospitals); 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 HHS scarce-materials designation effective July 1 through November 15, 2021, the federal conveyance order, the airborne-transmission control on every conveyance and transportation hub, and its security directives, the entry proclamations and land-border notices, OSHA's Healthcare Emergency Temporary Standard, the Task Force rules, Hawaii's statewide face-covering requirement, Executive Order 21-05 and Safe Travels, the indoor face-covering orders, airborne-transmission controls with the business as their enforcer, of Louisiana, Oregon, New Mexico, Washington, Illinois, Nevada and the District of Columbia for every person and the masking and verification rules of California, New York, Connecticut, Rhode Island and Nevada for the unvaccinated, the face-covering orders of Los Angeles County, the City of Los Angeles, Pasadena, Sacramento, the Bay Area, St. Louis, Kansas City, New Orleans, Jefferson Parish, Philadelphia, Boston, Brookline, Cambridge, Somerville, Worcester, Chicago, Cook County, Oak Park, Charlotte, Raleigh, Orange County, Baltimore, Montgomery County, Denver, Boulder County, San Miguel County, Madison and Dane County, Columbus, Dayton, Cuyahoga County, Monroe County, Lancaster County, Douglas County, Iowa City, Savannah, Atlanta, Cobb County, Dallas County, San Antonio and Honolulu, the vaccination-proof conditions of New York City, San Francisco, New Orleans and Honolulu, New York's Subpart 66-3 and HERO Act plans, the Cal/OSHA, Oregon OSHA, Virginia and Washington workplace standards, the school, child-care, quarantine, health-care, court and eviction orders on the industry's workforce and counterparties (Exs. SEC-07-031, FED-020, FED-051, FED-052, FED-207, FED-208, FED-233, FED-256, FED-235, FED-258, AGY-FED-LABOR-IMMIGRATION-088, FED-080, FED-272, HI-024, HI-025, MET-HNL-035, LA-036, LA-038, LA-040, OR-048, OR-043, NM-060, NM-067, NM-070, WA-072, WA-078, WA-080, IL-042, IL-043, NV-041, NV-051, DC-057, CA-029, CA-035, CA-024, NY-133, NY-073, CT-050, MET-LA-018, MET-LA-035, MET-SAC-015, MET-SFO-010, MET-SFO-011, MET-STL-021, MET-KC-002, MET-KC-006, MET-KC-045, MET-MSY-027, MET-MSY-029, MET-MSY-063, MET-PHL-019, MET-BOS-013, MET-CHI-026, MET-CHI-041, MET-CLT-025, MET-BAL-017, MET-DCM-023, MET-DEN-033, MET-MKE-023, MET-CMH-050, IN-093, NE-080, MET-NYC-017, VA-037, OR-049, NJ-055, KY-052, RI-055, PA-042, ECO-C-069, ECO-C-070, ECO-C-084 and the exhibits collected in subpart B), caused a temporary delay, interruption and, in the vaccination-proof jurisdictions, termination as to the unvaccinated patron of a more than nominal portion of the operations of employers in the retail trade throughout the United States. They did so by fixing, in the third quarter of 2021 as in the five before it, what goods a store could hold and at what price, who could enter the store and wearing what, who could enter the mall's tenants and on what proof, who could travel to the store and across which border, who could work and under what workplace conditions, and whose children were in school; and the suspension the closures and caps of the preceding fifteen months had compelled continued, because of those orders, through the restoration period their own last steps, taken between March 10 and July 1, 2021, had begun.

What this analysis does not claim was in force

Of the statewide retail closure, curbside and capacity orders, the proof for this quarter rests on New Mexico's Public Health Emergency Order of June 30, 2021 (Ex. NM-060) for the mandatory practices and penalties it kept in force after its capacity levels ended on July 1, and on none of the others. 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 non-essential retail closure and curbside-only orders of every State (Exs. NJ-004, NY-002, PA-002, MA-008, MI-011, IL-005, OH-011, KY-008, TX-008, CA-007, WA-016 and their counterparts), all of which ended by June 15, 2020 apart from New Mexico's November 16 to December 1, 2020 closure (Exs. NM-039, NM-040); every statewide retail occupancy percentage or per-square-foot cap, the last of which ended June 30, 2021 in Washington and Oregon (Exs. WA-072, OR-043) and July 1, 2021 in New Mexico (Ex. NM-060); the winter 2020-21 re-tightening orders (Exs. CA-020, IL-031, WA-047, MI-061, PA-028, DE-033, RI-032, MA-040, DC-014, MD-021, LA-023, NC-023 and their counterparts); the statewide universal face-covering mandates of Texas (March 10, 2021), Mississippi (March 3), Alabama (April 9), Indiana (April 6), Utah (April 10), Wyoming (March 16), Kansas and Arkansas (March 31), West Virginia (June 20), North Carolina (May 14), Maryland (May 15), Delaware (May 21), Connecticut for the vaccinated (May 19), New Jersey (May 28), Pennsylvania (June 28), Massachusetts (May 29), Minnesota (May 14), Michigan (June 22), Kentucky (June 11), Ohio (June 2), Maine (May 24), Vermont (June 14), New Hampshire (April 16), Rhode Island (July 6, 2021, relied on only for July 1 to 6), Colorado (June 1), Montana (February 12), Wisconsin (March 31, 2021), Iowa (February 7, 2021) and North Dakota (January 18, 2021); Ohio's Retail and Business Compliance order (rescinded effective June 2, 2021; Exs. SEC-07-037, OH-050) and curfew (February 11, 2021; Ex. OH-039); Michigan's EO 2020-42 department closures (superseded April 24, 2020 by EO 2020-59, Ex. MI-020; its own term ran to April 30; Ex. SEC-07-022) and MDHHS caps (June 22, 2021; Ex. MI-076); Kentucky's one-adult rule and Healthy at Work requirements (June 11, 2021; Exs. KY-014, KY-064, KY-049); the FFCRA leave mandate (December 31, 2020; Ex. FED-170); FEMA's export rule (June 30, 2021; Ex. FED-079); the CBP duty rule and Executive Order 13916 (relief; context only; Exs. SEC-07-040, SEC-07-041); the CISA lists (advisory throughout; Exs. SEC-07-001 to SEC-07-005, SEC-07-024); the CDC eviction orders after August 26, 2021 (Ex. FED-026) and the agency moratoria after September 30, 2021; the OSHA vaccination-or-testing standard and the CMS staff-vaccination rule of November 5, 2021 (Exs. FED-086, FED-095); Proclamation 10294 (October 25, 2021) and the DHS notices of October 21, 2021 opening the land borders to vaccinated travelers from November 8, 2021 (Exs. FED-209, FED-236, FED-259); Executive Orders 14042 and 14043 as to any private obligation before October 15, 2021 (Exs. FED-063, FED-064), cited only as federal statements of the emergency signed September 9, 2021; the Los Angeles County order of September 17, 2021, effective 11:59 p.m. October 7, 2021 (Ex. MET-LA-020), and King County's vaccination-verification order, issued September 16 with its entry requirement effective October 25, 2021 (Ex. MET-SEA-001), each cited only as an order issued in the quarter; Colorado's Seventh Amended Public Health Order 20-38, issued September 30 and effective October 1, 2021 (Ex. CO-054), cited only as issued, the Sixth Amended order (Ex. CO-091) being the instrument in force on September 30; Indiana's EOs 21-26 and 21-27, signed September 30 and effective October 1, 2021 (Exs. IN-072, IN-073), EOs 21-22 and 21-24 (Exs. IN-069, IN-071) being the instruments in force on September 30; the Supreme Court of Texas's Forty-Third Emergency Order (effective October 1; Ex. ECO-C-071); Ohio's House Bill 244 as to its October 13 effective date (Ex. OH-064); Puerto Rico's OE-2021-063 after its repeal on November 15, 2021 (Ex. AGY-TERRITORIES-034); and Hawaii's Delta Response Proclamation of October 1, 2021 (Ex. HI-029), cited only because it restates EO 21-05 verbatim. The Healthcare Emergency Temporary Standard is relied on as an order on in-store clinics and on the industry's health-care counterparties and not as an order on the sales floor.