Mining, Oil and Gas, and Energy Services

The sentence is the Service's form language on the suspension prong.²³⁷ For an employer in this industry it is contradicted, quarter by quarter, by the six quarters above. In the second quarter of 2020 the orders in force included Texas GA-14 and GA-12 (Ex. TX-008; Ex. TX-007), New Mexico's March 23 order (Ex. NM-006), Pennsylvania's list closing the mines by name (Ex. PA-004), North Dakota's Confinement Order 2020-02.1 (Ex. ND-021), the Railroad Commission's notices (Ex. SEC-23-001; Ex. SEC-23-004), the New Mexico shut-in rule (Ex. SEC-23-008), FERC's Order No. 870 and the business-continuity regime it administered (Ex. SEC-23-018; Ex. SEC-23-017) and the federal border, entry and allocation instruments (Ex. FED-216; Ex. FED-211; Ex. FED-075). In the third quarter of 2021 they included the federal conveyance mask order and security directives, the airborne-transmission control on every flight, bus, train and transportation hub (Ex. FED-020; Ex. FED-051; Ex. FED-052), the land-border limits (Ex. FED-233; Ex. FED-256), New Mexico's COVID-Safe Practices order and universal face-covering requirement (Ex. NM-060; Ex. NM-067), Louisiana's statewide face-covering order, the airborne-transmission control Proclamation 137 JBE 2021 placed on every person in every indoor workplace in the State (Ex. LA-036), Nevada's Directive 047 (Ex. NV-041), the State OSHA rules of four States (Ex. CA-024; Ex. VA-037; Ex. OR-044; Ex. AGY-ST-LABOR-WORKPLACE-055), FERC's waiver regime under Order No. 870 (Ex. SEC-23-018; Ex. SEC-23-023) and Executive Order 14042 (Ex. FED-063). Every one is a public record subject to judicial notice.²³⁸ The Service's own Q&A-10 says that "orders, proclamations, or decrees from the Federal government or any State or local government" qualify "without regard to the level of enforcement," and the United States told the District Court the same.²³⁹ The sentence describes a period that did not occur. It is factually incorrect, and it cannot be squared with the Federal Register for a single day of the third quarter of 2021.

The statute does not contain the word "essential." It asks whether the operation was "fully or partially suspended"; "partially" contemplates continuing operation, and an employer that "remained open" on conditions an order imposed was open on the order's terms.²⁴⁰ Every essential designation in this record was the premise of a condition, never an exemption: Colorado's Critical Businesses "must comply with Social Distancing Requirements and all PHOs" (Ex. CO-013); Nevada's mining labor force "may continue operations, but shall maintain strict social distancing practices" (Ex. NV-004); Alaska's critical-infrastructure businesses had to quarantine every arriving out-of-State worker and file a protective plan (Ex. AK-021); New Mexico named extraction essential and, in the same instrument, capped its lodging (Ex. NM-006). The Service's own Q&A-11 excludes only an employer whose order "allows all of the employer's operations to remain open," and its own last sentence treats a compelled closure "for a period of time during normal working hours" as a partial suspension; its Q&A-17 finds a partial suspension wherever a workplace is closed "for certain purposes" but open for others.²⁴¹ The Service's April 29, 2020 FAQs contained no nominal test at all; the words "more than a nominal" first appeared on June 19, 2020, and the ten percent deeming rule not until March 1, 2021.²⁴² Pennsylvania, moreover, did not designate the mines essential: Coal Mining, Metal Ore Mining, Nonmetallic Mineral Mining and Quarrying and Support Activities for Mining were marked "No" (Ex. PA-004). Tri-State answers the rest: the position that the changes an order compelled on an operating hospital were not a suspension would mean "there are not many businesses or any business that would be eligible under the ERC at all."²⁴³ "Essential" is a word the orders used to describe whom they conditioned; it is not a word Congress used to describe whom it excluded.

The statute says nothing of the source of an order or of its addressee; it asks whether the order was from an appropriate governmental authority and limited commerce, travel or group meetings. A stay-home order is an order limiting travel and group meetings in terms, and the commerce it limited was the employer's. The Service's own Q&A-10 lists "A State's emergency proclamation that residents must shelter in place for a specified period" and "An order from a local official imposing a curfew on residents that impacts the operating hours of a trade or business" as qualifying orders, and its current FAQ page still does.²⁴⁴ The United States told the District Court that orders "directed at business operations (operational hours, space, etc.) would also be considered"; the exclusion it appended for orders addressed to the public appears nowhere in the statute, cannot be squared with the Notice the United States was upholding, which lists the shelter-in-place proclamation first among qualifying orders, and rides on a document the United States has represented "lacks the force of law"; the Service is bound by its own Notice "to the same extent as a revenue ruling."²⁴⁵ In this industry the distinction has no purchase in any event: Texas GA-14 was addressed to "every person in Texas" and to every business by the critical-infrastructure list at once (Ex. TX-008); New Mexico's March 23 order addressed the public, the essential businesses and the hotels in one instrument (Ex. NM-006); North Dakota's Confinement Order addressed "any person who enters North Dakota," which is to say every crew (Ex. ND-021); the Navajo Nation's lockdowns addressed everyone on the Nation's lands (Ex. AGY-TRIBAL-003). The Service is free to prefer orders addressed to businesses. It is not free to read out of the statute the orders Congress described and the Service itself listed.

"Comparable operations" and "telework" are not in the statute. Q&A-15's exclusion applies only where operations "comparable to its operations prior to the closure" continued, and Q&A-16's own factor (3) makes physical work space "so critical" that "this factor alone" defeats comparability wherever central tasks cannot be performed remotely.²⁴⁶ A rig is drilled on location; a well is completed on location; a mine is mined underground or in the pit; a pipeline is laid in a trench; a crew is lodged in a camp. Not one of the first seven functions described above can be performed by telework, and the orders that reached them were orders on travel, lodging, borders, job sites and regulators, not orders a laptop could satisfy (Ex. ND-021; Ex. NM-010; Ex. FED-020; Ex. CA-024; Ex. SEC-23-001). Where telework was compelled, it was compelled by order and it was a modification the order caused: Pennsylvania's "Unless not possible, all businesses are required to conduct their operations in whole or in part remotely through individual teleworking" and "Unless impossible, all businesses must conduct their operations remotely" (Ex. PA-016; Ex. PA-022), New Jersey's protocols (Ex. NJ-036), Minnesota's mandate (Ex. MN-037), the Railroad Commission's own account that it and "a large number of operators are now working remotely" (Ex. SEC-23-001). Q&A-16 itself recognizes that the move is "a partial suspension during that transition period."²⁴⁷ An office that an order sent home was an office the order changed; the remainder continuing is what "partial" means.

The statute asks whether the operation was suspended "due to" an order limiting commerce; it does not ask whom the order addressed, and an order that removed the customer's demand limited the employer's commerce in the plainest sense. The Notice's own Q&A-12 treats an order on a supplier as an order that suspends the employer "due to" it, and the United States told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party."²⁴⁸ Q&A-13 cannot be reconciled with Q&A-10, which lists the shelter-in-place proclamation as an order, or with Q&A-12, or with the United States' admission; its own example recites that the order "limits travel."²⁴⁹ The exclusion was, moreover, confined on April 29, 2020 to what the FAQ called "an essential business that is not required to close its physical locations" and to a suspension claimed "for the sole reason" of the customers' order; the Notice extended it to every employer and to any "reduction in demand" on March 1, 2021, eleven months after the second quarter of 2020 began.²⁵⁰ In this industry the customer-order point is the mechanism the Suspension Clause reaches: the orders on travel and commerce cut jet fuel sixty-four percent and gasoline twenty-six percent, the producers shut in under their regulators' rules, and the service company's only customer stopped buying (Ex. SEC-23-024; Ex. SEC-23-008; Ex. SEC-23-028; Ex. SEC-23-015). The Energy Information Administration attributed the collapse to "COVID-19-related shutdowns" in its own words. A demand the orders removed is a limitation on commerce the orders imposed, and the statute asks nothing more.

"Voluntary" is not in the statute; "due to" is, and it means but-for causation.²⁵¹ Q&A-14 by its own terms reaches only a suspension "not due to a governmental order." A quarantine of an arriving crew under Texas GA-12, North Dakota's Confinement Order or New Mexico's Executive Order 2020-054 was not voluntary (Ex. TX-007; Ex. ND-021; Ex. NM-024); a lodging cap was not voluntary (Ex. NM-010); a written prevention program under Cal/OSHA's standard was not voluntary (Ex. CA-024); a face covering on a rig floor under GA-29, Directive 047 or Proclamation 137 JBE 2021, and the exposure-control regime each formed part of, was not voluntary (Ex. TX-022; Ex. NV-041; Ex. LA-036); a shut-in under 19.2.100.71 NMAC was not voluntary (Ex. SEC-23-008); a deadline rolled by the Railroad Commission was not voluntary (Ex. SEC-23-003). Tri-State accepted the hospital's allegation that the changes made "to ensure compliance with the Proclamation" "were not voluntary," held that "the required protocols and procedures to comply with the Proclamation" were caused by the order, and held that "[s]ick patients and employees alone did not require additional protocols."²⁵² The Service's position mistakes the employer's obedience for its choice. Compliance with an order is the opposite of a voluntary act.

Q&A-14 reaches only a suspension "not due to a governmental order," and the United States and the District Court have defined the excluded employer as one "not being ordered to do so."²⁵³ No employer in the eight principal States answered that description in any quarter. The reopening orders permitted operation only on conditions: Texas's "shall operate at no more than," New Mexico's "must operate in accordance with," Oklahoma's "must publicly post and adhere," Louisiana's "shall be allowed to operate under the following conditions," North Dakota's "must be adopted and rigorously followed," California's "shall establish, implement, and maintain," Pennsylvania's "provided that the businesses fully comply" and Colorado's "shall comply with the requirements," each backed by a penalty or offense provision (see the standing duties above).²⁵⁴ The standing statutes commanded the same conduct independently: Health and Safety Code section 81.002 ("Each person shall act responsibly to prevent and control communicable disease") with its control-measure offenses, the workplace-safety statutes of all eight States, and the general duty clause, 29 U.S.C. § 654(a)(1).²⁵⁵ Texas, Oklahoma, Louisiana and North Dakota then fixed the standard of care as compliance with governmental standards, guidance, orders and protocols; the other four States enacted no shield and left the ordinary standard of care in force.²⁵⁶ The safe-workplace statute had no COVID-19 content until the health authorities said what a safe site, shop and office required; the screened gate, the rotated shift and the quarantined crew were taken because those directives defined the duty and would not have been taken without them. "Due to" is but-for causation, and the causation here runs from the command to the measure without an intervening choice.²⁵⁷ The Notice's own words confirm it: a modification "required by a governmental order as a condition of reopening a physical space for business or service to the public" is a partial suspension due to the order.²⁵⁸ A statute that commands conduct is an order from an appropriate governmental authority; the Service's premise that no command reached the employer fails wherever one did, and one reached every employer in this industry on every day of the six quarters.

The statute contains no numerical threshold in the Suspension Clause; Congress wrote its thresholds into the gross-receipts prong alone, and "where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."²⁵⁹ The United States has told two courts what the ten percent figure is: "Effectively, this is a safe harbor ... Properly understood, it isn't an eligibility requirement. ... [I]t does not impose a threshold or place a limitation on receiving the credit"; "a quintessential safe harbor"; "a safe harbor rather than a hard floor"; and in Tri-State, "a method for the test to be met not as a requirement to meet the test."²⁶⁰ The District Court held the figure "not an exclusionary cut-off point."²⁶¹ The Service's FAQ page nonetheless tells every taxpayer that "The IRS considers 'more than nominal' to be at least 10% of your business," and Chief Counsel's memorandum of October 18, 2023 tells examiners that an employer must "substantiate ... a reduction ... of not less than 10 percent to fall within the provisions of Notice 2021-20."²⁶² The figure did not exist on April 29, 2020, when the Service's FAQs contained no nominal test and no percentage; the words "more than a nominal" first appeared on June 19, 2020, still without a percentage; and the two deeming rules first appeared in the Notice on March 1, 2021.²⁶³ Tri-State refused the United States' attempt "to conflate 'more than nominal' to suggest that it means 'significant,'" and held that a ten percent requirement "would read requirements into the statute that do not exist."²⁶⁴ This analysis treats the figure as what the United States says it is, a safe harbor, and holds the United States to that account; the showing for this industry, whose regulators recorded completion crews falling "from 25 to 1" and whose support-services employment fell by a third, exceeds the harbor many times over on any measure the Service has ever proposed (Ex. SEC-23-015; Ex. LAW-206; Ex. LAW-223). The United States cannot describe the figure as an optional safe harbor when the Notice is challenged and administer it as a floor when a claim is examined. It has said which it is. It is held to what it said.

The statute has no nominal-effect requirement; a partial suspension is "a temporary delay, interruption, or termination of a portion an employer's business," and "portion" is not "significant."²⁶⁵ Q&A-18's categorical sentence that mask, glove and one-way-aisle mandates "will not result in more than a nominal effect" is a factual conclusion stated as a rule, with no record behind it, and it contradicts Q&A-18's own first paragraph, which lists face-covering requirements among the modifications "required by a governmental order as a condition of reopening a physical space for business."²⁶⁶ The sentence did not exist before March 1, 2021.²⁶⁷ The United States told the District Court that "employees having to wear face masks may impact business operations" and that mask and operational-hours orders "would also be considered."²⁶⁸ In this industry the modifications the orders compelled were not masks alone: a fourteen-day quarantine of every arriving crew (Ex. ND-021; Ex. TX-007; Ex. NM-024), lodging at twenty-five percent (Ex. NM-010), a protective plan filed with the State as a condition of operating (Ex. AK-021), a written prevention program with exclusion of exposed employees and outbreak testing (Ex. CA-024; Ex. VA-037; Ex. OR-041), four-hour case reporting (Ex. AGY-ST-LABOR-WORKPLACE-027), remote filing and rolled deadlines (Ex. SEC-23-001; Ex. SEC-23-003), a shut-in rule (Ex. SEC-23-008), a $5,000-per-violation COVID-Safe Practices mandate (Ex. NM-060), a vaccination deadline for every State contractor (Ex. WA-077). Where a face-covering order, one of the occupational-health and airborne-transmission controls the States imposed on every workplace, reached an H2S-rated respirator program, a confined-space entry, a hot-work permit or a twelve-hour tour at altitude, the question is causation, and the mandate caused the change. The Service's rule of thumb about store aisles has nothing to say about a rig floor.

The statute asks whether an instrument from an appropriate governmental authority limited commerce, travel or group meetings; it does not ask what the instrument is called. A declaration that only declares is cited here as the predicate of the orders issued under it (Ex. FED-001; Ex. FED-006; Ex. FED-010; Ex. TX-038; Ex. NM-069; Ex. WV-001; Ex. WY-001; Ex. AZ-001; Ex. NV-001; Ex. CA-001; Ex. WA-001), and the orders are the instruments listed in the layers and quarters sections, each with its issuer, date, operative clause and end date. A proclamation or declaration that commands is an order whatever its caption. The Service's own Q&A-10 does not distinguish an order from a proclamation by its title: it lists "A State's emergency proclamation that residents must shelter in place" as a qualifying order.²⁶⁹ Louisiana's Proclamation 137 JBE 2021 is a proclamation and it required every person in the State, in every business, to wear a face covering indoors (Ex. LA-036); Washington's Proclamation 21-14 is a proclamation and it set a vaccination deadline for every State contractor (Ex. WA-077); Texas's GA-14 is an executive order and it defined the essential services of the largest producing State (Ex. TX-008). Hawaii's Emergency Proclamation of August 5, 2021 carried the Safe Travels quarantine and statewide face coverings (Ex. HI-024); Alaska's public health emergency of May 1, 2021 carried its health-care provisions (Ex. AK-030). An instrument is an order when it commands; the label is not the test, and the Service's own list says so.

Chief Counsel's memorandum of June 30, 2023 "may not be used or cited as precedent" by its own terms, and Tri-State declined to follow a memorandum of the same kind for that reason.²⁷⁰ Its analysis converts Q&A-12 into "a narrow, limited exception," adds a requirement that the order "appl[y] to the employer's operations," adds an "alternate supplier" element and requires the employer to produce the supplier's order; none of those words is in Q&A-12, which says that an employer "may be considered to have a full or partial suspension of operations due to a governmental order" when its "suppliers are unable to make deliveries of critical goods or materials due to a governmental order that causes the supplier to suspend its operations."²⁷¹ The United States told the Ninth Circuit that the supplier rule "never even mentions a 'physical[ ] clos[ure]' order against the supplier."²⁷² Causation under the statute is but-for, and the Supreme Court has accepted that but-for causation "can be a sweeping standard" with "multiple but-for causes."²⁷³ The supplier orders in this record are, in any event, orders that closed or limited suppliers by name: Pennsylvania's and Michigan's manufacturing closures (Ex. PA-002; Ex. MI-011; Ex. MI-026), the land-border limits on every Canadian and Mexican component (Ex. FED-216; Ex. FED-239; Ex. FED-234; Ex. FED-257), the nonimmigrant suspension on every foreign technician (Ex. FED-211), the respirator allocation rule (Ex. FED-075; Ex. FED-078), and the customs rule that defined relief for importers whose operations were "fully or partially suspended ... due to orders from a competent governmental authority limiting commerce, travel, or group meetings due to COVID-19" (Ex. AGY-USCG-PORTS-066). The Executive Branch wrote the Suspension Clause's words into a customs rule to describe the industry's importers. The Service's memorandum does not mention it.

The Service's ground for a later quarter is that the orders had lifted and that what remained was residue. Chief Counsel's memorandum of June 30, 2023 states it as "residual delays caused by a governmental order in place during a prior calendar quarter" that "will not constitute a governmental order in subsequent calendar quarters once the order has been lifted"; neither "residual" nor "lingering" is in the statute, and Chief Counsel's document "may not be used or cited as precedent."²⁷⁴ The clause asks whether the operation was "suspended during the calendar quarter due to orders," and "during the calendar quarter" modifies "suspended"; Congress did not write "orders in effect during the quarter." Tri-State defines suspension to include a "delay," and "due to" is but-for causation; the Notice's own Q&A-22 makes an employer suspended "during a portion of a calendar quarter" eligible "for the entire calendar quarter," and Q&A-16 treats the "adjustment period" after an order operates as "a partial suspension during that transition period."²⁷⁵ The interconnected economy section states the restoration arithmetic from the orders' own terms: fifteen months of lodging caps in New Mexico (Ex. NM-006; Ex. NM-060), about thirteen and a half months of Pennsylvania workplace and mitigation orders from the Worker Safety Order of April 19, 2020 to the mitigation orders' sunset of May 31, 2021 (Ex. PA-008; Ex. PA-031; Ex. PA-035; Ex. PA-036), every Texas deadline due on December 31, 2020 (Ex. SEC-23-007), the Bakken's rigs from fifty-five to thirty-five by July 17, 2020 (Ex. SEC-23-013; Ex. SEC-23-016). And the premise is wrong on its own terms: the orders had not lifted. The third-quarter inventory lists thirty-eight classes of instruments in force between July 1 and September 30, 2021, beginning with a federal order on every crew flight (Ex. FED-020) and every land border (Ex. FED-233), and including New Mexico's COVID-Safe Practices order from the quarter's first day (Ex. NM-060) and Louisiana's statewide face-covering order, the airborne-transmission control Proclamation 137 JBE 2021 placed on every person in every indoor workplace in the State, from August 4 (Ex. LA-036). The Service is free to call a continuing suspension by another name. It is not free to say that the orders that continued it did not exist.

The gross-receipts prong is not relied on. The Suspension Clause and the gross-receipts clause are alternative routes to eligibility, joined by "or," and each is complete in itself.²⁷⁶ Tri-State held that the gross-receipts test is "by Defendant's admission, another method to qualify" and that "the fact an employer can be eligible and affected without partial or full suspension is reasonable"; the United States' argument that the gross-receipts prong shows the suspension prong is narrow was found "contradictory."²⁷⁷ Congress placed its numerical thresholds in the gross-receipts prong alone and wrote none into the Suspension Clause.²⁷⁸ An employer in this industry whose crews flew under the federal conveyance face-covering order, the airborne-transmission control on every crew flight, whose Permian lodging stood capped to June 30, 2021 and whose New Mexico sites operated under a $5,000-per-violation order was partially suspended by those orders whatever its receipts; the Suspension Clause asks about the operation, not the ledger. A ground that answers a prong the employer did not claim answers nothing.

This analysis treats no guidance as an order. The Cybersecurity and Infrastructure Security Agency's critical-infrastructure list (Ex. FED-394; Ex. ECO-A-122), the Environmental Protection Agency's enforcement policy (Ex. AGY-FED-LANDS-SCIENCE-COURTS-003), the Coast Guard's bulletins (Ex. AGY-USCG-PORTS-007; Ex. AGY-USCG-PORTS-037), the Energy Information Administration's outlook (Ex. SEC-23-024), the Industrial Commission's Director's Cuts (Ex. SEC-23-013), the Federal Energy Regulatory Commission's policy statements and docket notices (Ex. SEC-23-017; Ex. SEC-23-019; Ex. SEC-23-020; Ex. SEC-23-021; Ex. SEC-23-022; Ex. SEC-23-023) and the Industrial Commission's releases (Ex. SEC-23-028; Ex. SEC-23-029), each the regulator's own record of an order it issued or a regime it administered, are cited as context and as evidence of the regime the orders created, and the orders that created it are named beside them. The instruments treated as orders command: "Every person who enters the State of Texas through roadways from Louisiana ... shall be subject to mandatory self-quarantine for a period of 14 days" (Ex. TX-007); "any person who enters North Dakota traveling from another state or country ... is subject to immediate quarantine for a period of fourteen (14) days" (Ex. ND-021); "workers arriving in Alaska from out of state must self-quarantine for 14 days" (Ex. AK-021); "Unless impossible, all businesses must conduct their operations remotely" (Ex. PA-022); "the construction, mining, manufacturing, and infrastructure sector labor force may continue operations, but shall maintain strict social distancing practices" (Ex. NV-004); a civil penalty of $5,000 per violation (Ex. NM-060); "This Order takes effect at 11:59 p.m. Monday February 1, 2021" (Ex. FED-020). The Service's Q&A-10 qualifies orders "without regard to the level of enforcement," and the State occupational-safety rules in this record are enforced by citation and fine (Ex. CA-024; Ex. VA-037; Ex. OR-041; Ex. AGY-ST-LABOR-WORKPLACE-054).²⁷⁹ Where the Service's own instruments are concerned, the label cuts the other way: the FAQs on which the Service's positions rest said of themselves that they "may not be relied upon as legal authority," and the United States has told two courts that the Notice that incorporated them "lacks the force of law."²⁸⁰ This analysis cites those FAQs for one purpose only: as the Service's own dated record of what its positions were on April 29, 2020 and of when each later gloss was added. The recommendations in this record are the Service's. The orders are the governors', the health officers', the regulators' and the President's.

Agreed. An order is "An authoritative indication to be obeyed; a command or direction."²⁸¹ Applied to the instruments in this record, the ordinary meaning yields the following. Executive Order GA-14, which ordered every person in Texas to minimize in-person contact and defined the essential services (Ex. TX-008): an order. Confinement Order 2020-02.1, which quarantined every person entering North Dakota (Ex. ND-021): an order. The Public Health Emergency Order of March 23, 2020, which capped every New Mexico hotel at fifty percent (Ex. NM-006): an order. The Order of the Governor Regarding the Closure of All Businesses That Are Not Life Sustaining, with its list marking the mines "No" (Ex. PA-002; Ex. PA-004): an order. Directive 003, under which the mining labor force "may continue operations, but shall maintain strict social distancing practices" (Ex. NV-004): an order. Emergency rule 19.2.100.71 NMAC, which set the terms of every State-lease shut-in (Ex. SEC-23-008): an order. The Notice to Oil and Gas Operators of April 3, 2020, which extended every Oil and Gas Division deadline and deferred every plugging and P-5 obligation (Ex. SEC-23-003): an order. Order No. 870 of the Federal Energy Regulatory Commission (Ex. SEC-23-018): an order by name. The Requirement for Persons To Wear Masks While on Conveyances and at Transportation Hubs, which "takes effect at 11:59 p.m. Monday February 1, 2021" (Ex. FED-020): an order. Security Directive 1582/84-21-01A (Ex. FED-051): an order. The Notification of Temporary Travel Restrictions at every land port of entry (Ex. FED-232): an order. Proclamation 137 JBE 2021, requiring every person in Louisiana to wear a face covering indoors (Ex. LA-036): an order. Directive 047 (Ex. NV-041): an order. The Public Health Emergency Order of June 30, 2021, binding every New Mexico business to COVID-Safe Practices under a $5,000 penalty (Ex. NM-060): an order. Public Health Emergency Order No. 2021-013 of the Navajo Nation (Ex. AZ-079): an order. Executive Order 14042 (Ex. FED-063): an order. The Cal/OSHA COVID-19 Prevention Emergency Temporary Standard, enforced by citation (Ex. CA-024): an order. Proclamation 21-14 (Ex. WA-077): an order. Each was an authoritative indication to be obeyed, issued by the authority with power over the commerce, travel or meetings it limited, and each limited them. The ordinary meaning of "order" is the meaning this analysis applies, and it reaches every instrument in the quarter inventories above.

The Service is free to disagree about the weight of these instruments. It is not free to say they did not exist.