Mining, Oil and Gas, and Energy Services

Function by function

Each of the eleven functions of a typical employer in mining, oil and gas and energy services was partially suspended in every one of the six quarters by instruments that the layers section identified and the quarters section placed in time. This section states, for each function, the instruments that reached it in each quarter, the modification each compelled, and the determination in the words the statute uses. The statute's words are the frame, and the Notice's own rule confirms the result: a workplace "closed due to a governmental order for certain purposes, but ... open for other limited purposes" is partially suspended, and "such a modification of operations is considered to be a partial suspension of business operations due to a governmental order."²²⁴ Each function below is a purpose the orders closed or a purpose the orders conditioned.

EX. Extraction and production sites

In the second quarter of 2020 every closure State designated extraction essential and conditioned it: 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 file protective plans and quarantine every arriving out-of-State worker (Ex. AK-021); Texas's GA-14 ordered every person to minimize contact outside the household (Ex. TX-008); Minnesota's iron ore mines and their suppliers operated under a stay-home order and, from April 30, a mandatory preparedness plan (Ex. MN-010; Ex. MN-017). Pennsylvania marked Coal Mining, Metal Ore Mining, Nonmetallic Mineral Mining and Quarrying and Support Activities for Mining "No" on March 19, 2020 (Ex. PA-004; Ex. SEC-09-007) and bound every business that reopened to the Worker Safety Order from April 19, 2020 (Ex. PA-008). The Navajo Nation locked down the Nation, mineral lands included, for fifty-seven hours every weekend in April, for ten days in June and every weekend in September 2020 (Ex. AGY-TRIBAL-001; Ex. AGY-TRIBAL-003; Ex. AGY-TRIBAL-008). The New Mexico shut-in rule and the North Dakota waivers set the terms on which wells stopped producing (Ex. SEC-23-008; Ex. SEC-23-028). In the third and fourth quarters of 2020 the conditions were the workplace infection-prevention and exposure-control requirements of every producing State, its face-covering, distancing and health-policy orders (Ex. TX-022; Ex. CO-031; Ex. LA-018; Ex. KY-017; Ex. PA-008; Ex. PA-020; Ex. ND-066; Ex. WY-040; Ex. UT-029; Ex. NM-041), the State OSHA rules of Virginia, California, Oregon and Michigan (Ex. VA-036; Ex. CA-023; Ex. OR-032; Ex. MI-054) and the Navajo stay-home order (Ex. AGY-TRIBAL-013). In the first and second quarters of 2021 the same regimes ran to their end dates (Ex. TX-025; Ex. WY-040; Ex. CO-057; Ex. CO-051; Ex. PA-020; Ex. KY-049; Ex. NM-054; Ex. NM-057) and the State rules continued (Ex. VA-037; Ex. CA-024; Ex. OR-041; Ex. AGY-ST-LABOR-WORKPLACE-062). In the third quarter of 2021 every New Mexico site operated under COVID-Safe Practices with a $5,000 penalty and, from August 20, the universal indoor face-covering requirement (Ex. NM-060; Ex. NM-067); every Louisiana site under the statewide face-covering order from August 4 (Ex. LA-036); every Nevada mine in a listed county under Directive 047 from July 30 (Ex. NV-041); every Illinois mine from August 30 (Ex. IL-042); every Colorado facility under Public Health Order 20-38 (Ex. CO-041; Ex. CO-091); every California, Virginia, Oregon and Washington site under a State rule (Ex. CA-024; Ex. VA-037; Ex. OR-044; Ex. AGY-ST-LABOR-WORKPLACE-055); and the Navajo Nation's mineral lands under Yellow and Orange Status (Ex. AZ-079; Ex. AZ-082). The modifications compelled were closure by name, lockdown, distancing, screening, masking, written prevention programs, case reporting and exclusion of exposed workers. The operation of extraction and production sites was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of these instruments.

SV. Oilfield and well services

The service company's crews travel, and the travel orders reached them first: Texas GA-12 on every road arrival from Louisiana (Ex. TX-007), North Dakota's Confinement Orders (Ex. ND-014; Ex. ND-021), Montana's, Wyoming's, Oklahoma's, Kentucky's, West Virginia's, Utah's and Alaska's quarantines (Ex. MT-010; Ex. WY-010; Ex. OK-010; Ex. KY-013; Ex. WV-012; Ex. UT-008; Ex. AK-012), Kansas's list (Ex. KS-053; Ex. KS-054) and New Mexico's universal quarantine from July 1, 2020 to February 10, 2021 (Ex. NM-024; Ex. NM-031; Ex. NM-037; Ex. NM-051). The service company's shops and yards were workplaces under every State's conditioned regime and every State OSHA rule (Ex. PA-008; Ex. VA-036; Ex. CA-023; Ex. OR-032; Ex. VA-037; Ex. CA-024). The service company's customers shut in and deferred under the regulators' instruments (Ex. SEC-23-008; Ex. SEC-23-028; Ex. SEC-23-003; Ex. SEC-23-006); the Industrial Commission recorded active completion crews "decreasing from 25 to 1" (Ex. SEC-23-015). From February 1, 2021 every crew flight operated under the federal conveyance face-covering order (Ex. FED-020; Ex. FED-051; Ex. FED-052). In the third quarter of 2021 every New Mexico and Louisiana service crew worked indoors under those States' face-covering requirements from August 20 and August 4 (Ex. NM-067; Ex. LA-036), every Kansas arrival from a listed location quarantined unless vaccinated (Ex. KS-056; Ex. KS-057), and the Revised National Emphasis Program directed inspections (Ex. FED-083). The modifications compelled were quarantine of arriving crews, masking, distancing, screening, written prevention programs and the reduction of the wells to be serviced. The operation of oilfield and well services was partially suspended in all six quarters because of these instruments.

DR. Drilling and completion crews

The rig crew rotates by road and by air, and the drilling permit is a regulator's act. In the second quarter of 2020 the arrival quarantines (Ex. TX-007; Ex. ND-021; Ex. MT-010; Ex. WY-010; Ex. OK-010; Ex. AK-012) confined the rotating crews, the gathering caps of ten reached every pre-spud meeting and stand-down (Ex. TX-003; Ex. WY-005; Ex. CO-004), and the regulators' instruments reduced the wells to drill and complete (Ex. SEC-23-028; Ex. SEC-23-004; Ex. SEC-23-008); the Industrial Commission recorded fifty-five rigs in April, thirty-five in July and 193 wells waiting on completion in July 2020 (Ex. SEC-23-013; Ex. SEC-23-016). The Railroad Commission moved its drilling-permit system online June 1, 2020 while its staff worked remotely (Ex. SEC-23-005; Ex. SEC-23-001). In the third and fourth quarters of 2020 New Mexico's, Alaska's, Kansas's, Pennsylvania's and the Northeast's quarantines (Ex. NM-024; Ex. AK-039; Ex. KS-055; Ex. PA-021; Ex. MA-025) and the face-covering orders, with their distancing and capacity companions, on every rig floor (Ex. TX-022; Ex. ND-066; Ex. WY-040) governed. From February 1, 2021 the federal air layer governed every crew change by air (Ex. FED-020; Ex. FED-050; Ex. FED-051; Ex. FED-052; Ex. FED-053; Ex. FED-054), and the land-border limits every Canadian crew and rig component (Ex. FED-227; Ex. FED-233; Ex. FED-234). In the third quarter of 2021 the federal layer, the Kansas list, the New Mexico and Louisiana face-covering requirements and the State rules of California, Virginia, Oregon and Washington reached every crew (Ex. FED-020; Ex. KS-057; Ex. NM-067; Ex. LA-036; Ex. CA-024; Ex. VA-037; Ex. OR-041; Ex. AGY-ST-LABOR-WORKPLACE-054). The modifications compelled were quarantine of arriving crews, masked travel, capped meetings, and the deferral of wells under the regulators' waivers and shut-in rules. The operation of drilling and completion crews was partially suspended in all six quarters because of these instruments.

PL. Pipeline and utility construction

Pennsylvania marked Utility Subsystem Construction "No" from March 19 to May 1, 2020 (Ex. PA-004); New Jersey ceased non-essential construction from April 10 to May 18, 2020 (Ex. NJ-011); New York limited construction to essential projects (Ex. SEC-09-001); Washington's and Michigan's stay-home orders reached every crew (Ex. WA-016; Ex. MI-011). FERC's Order No. 870 governed every jurisdictional project's COVID-19 waiver and extension requests from April 2020 (Ex. SEC-23-018), its business-continuity and oil-pipeline policy statements are the Commission's own record, made at the time, of the regime it administered under that order (Ex. SEC-23-017; Ex. SEC-23-020), and its docket recorded COVID-19 construction delays (Ex. SEC-23-022). The utilities that let the work operated under disconnection moratoria that deferred their capital programs: Kentucky (Ex. AGY-ST-UTILITIES-HOUSING-AG-001), Arkansas (Ex. AGY-ST-UTILITIES-HOUSING-AG-003), Connecticut (Ex. CT-065), Pennsylvania (Ex. AGY-ST-UTILITIES-HOUSING-AG-015), Illinois, under the Commerce Commission's directive letter of March 13, 2020 and its September 9, 2020 request, with which the utilities complied (Ex. AGY-ST-UTILITIES-HOUSING-AG-009; Ex. AGY-ST-UTILITIES-HOUSING-AG-010), Texas (Ex. AGY-ST-UTILITIES-HOUSING-AG-016), New York to December 21, 2021 (Ex. AGY-ST-UTILITIES-HOUSING-AG-006; Ex. AGY-ST-UTILITIES-HOUSING-AG-007), New Jersey to June 30, 2021 with a grace period to December 31 (Ex. NJ-059; Ex. NJ-061), Washington to September 30, 2021 (Ex. WA-014), North Carolina (Ex. NC-006; Ex. NC-012). The State OSHA rules bound every right-of-way in Virginia, California, Oregon, Michigan and Washington (Ex. VA-036; Ex. VA-037; Ex. CA-023; Ex. CA-024; Ex. OR-032; Ex. OR-041; Ex. AGY-ST-LABOR-WORKPLACE-050). In the third quarter of 2021 FERC's waiver regime under Order No. 870 ran, and on September 14 the Commission noticed the request to extend it into 2022 (Ex. SEC-23-018; Ex. SEC-23-023), Washington's Proclamation 21-14 set an October 18 vaccination deadline for every State contractor (Ex. WA-077; Ex. WA-087) and every federal contractor was addressed by Executive Order 14042 of September 9, whose clause every covered contract carried from October 15, 2021 (Ex. FED-063; Ex. FED-275); from September 9 every pipeline and utility contractor bidding on, renewing or extending a covered federal contract built the Task Force's protocols into its September bids, staffing plans and subcontracts, because the order fixed October 15 as the day the clause would attach, and the compelled change began the day the order issued. The modifications compelled were closure, essential-project limits, distancing and prevention programs, deferral of the customers' capital work under moratoria and waivers, and vaccination conditions. The operation of pipeline and utility construction was partially suspended in all six quarters because of these instruments.

CM. Crew lodging, camps and travel

New Mexico capped every hotel, motel and RV park at fifty percent on March 24, 2020, twenty-five percent April 7, sixty and twenty-five percent October 16, twenty-five percent November 16, by county color from December 2 (forty and twenty-five percent at Red, sixty and twenty-five at Yellow, seventy-five and forty at Green, for NM Safe Certified and other lodging), and at one hundred percent for certified lodging and fifty percent for all other lodging at the Turquoise level added February 24, 2021, with every county Turquoise by June 30, 2021 and no cap from July 1, 2021 (Ex. NM-006; Ex. NM-010; Ex. NM-033; Ex. NM-039; Ex. NM-041; Ex. NM-054; Ex. NM-057; Ex. NM-060). Connecticut barred non-essential guests (Ex. CT-013), Maine closed lodging (Ex. ME-013), New Hampshire confined it to essential workers (Ex. NH-013), Delaware closed it to leisure guests (Ex. DE-013), South Carolina and Vermont restricted it (Ex. SC-012; Ex. VT-012), Georgia suspended short-term rentals (Ex. GA-014), Montana and Wyoming required the quarantine notice on every listing (Ex. MT-010; Ex. WY-010), the Southeast Utah Health Department's Grand County order of May 1, 2020 conditioned lodging and required face coverings (Ex. UT-056), Routt County closed its lodging (Ex. CO-079), Alaska required critical-infrastructure lodging plans and Anchorage regulated its hotels (Ex. AK-021; Ex. AK-069; Ex. AK-075), and California's Regional order barred out-of-State non-essential reservations (Ex. CA-020). The dining rooms the crews eat in were closed in every basin State in March 2020 (Ex. TX-003; Ex. WY-004; Ex. CO-004; Ex. OK-006; Ex. LA-003; Ex. WV-002; Ex. AK-005; Ex. NM-003) and re-closed in New Mexico in July and November (Ex. NM-026; Ex. NM-039), Allegheny County in July (Ex. MET-PIT-004) and Bexar County in December 2020 (Ex. MET-SAT-055). Travel: the twenty-State quarantines of spring 2020, the winter quarantines of Pennsylvania, Maryland, Vermont, New Hampshire, Washington, Alaska, Kansas and New Mexico (Ex. PA-021; Ex. MD-023; Ex. VT-034; Ex. VT-035; Ex. VT-080; Ex. NH-027; Ex. WA-054; Ex. AK-035; Ex. KS-055; Ex. NM-037), Hawaii's quarantine through the period (Ex. HI-003; Ex. HI-024), the federal air layer from February 1, 2021 (Ex. FED-020), and the land-border limits from March 21, 2020 to November 8, 2021 (Ex. FED-216; Ex. FED-239; Ex. FED-235; Ex. FED-258). In the third quarter of 2021 the indoor face-covering requirements of Louisiana, New Mexico, Nevada, Oregon, Illinois, Washington and the District and of forty cities, with the screening, capacity and vaccination-verification conditions the cities attached to them, governed every hotel, restaurant and airport the crews use (Ex. LA-036; Ex. NM-067; Ex. NV-041; Ex. OR-048; Ex. IL-042; Ex. WA-078; Ex. DC-057; Ex. MET-MSY-027; Ex. MET-DFW-028; Ex. MET-SFO-010), and the Navajo Nation's lodging and road rules governed the Nation (Ex. AZ-079; Ex. AZ-081). The modifications compelled were capped, closed and restricted lodging, quarantine of arriving crews, masked travel and border limits. The operation of crew lodging, camps and travel was partially suspended in all six quarters because of these instruments.

PM. Permits, inspections and regulator filings

"The Railroad Commission of Texas (Commission) and a large number of operators are now working remotely" from March 19, 2020 (Ex. SEC-23-001); every Oil and Gas Division deadline was extended to September 30 and then December 31, 2020 and expired that day (Ex. SEC-23-003; Ex. SEC-23-006; Ex. SEC-23-007); the Commission adopted temporary exceptions to its rules May 5 (Ex. SEC-23-004) and moved its permits online June 1 (Ex. SEC-23-005). The State Land Office held its rulemaking hearings remotely (Ex. SEC-23-012). The Interior Department's bureaus went to leave and telework March 22, 2020 (Ex. FED-386), operated under the OMB gating memoranda (Ex. FED-264; Ex. FED-268), at twenty-five percent occupancy from January 24, 2021 (Ex. FED-270), under reentry planning from June 10 (Ex. FED-271) and under reinstated masks and certification from July 29 and August 2021 (Ex. FED-272; Ex. FED-278). The Environmental Protection Agency's enforcement policy, cited as context, recognized that ordinary compliance had become impossible (Ex. AGY-FED-LANDS-SCIENCE-COURTS-003). The Oklahoma Corporation Commission's hearings ran on Zoom from June 21, 2021 (Ex. SEC-23-026); the Arizona Corporation Commission closed its docket control to in-person service March 25, 2020 (Ex. AGY-ST-DMV-SOS-RECORDERS-094); the courts that hear title, royalty and regulatory appeals operated under emergency orders in every quarter (Ex. ECO-C-061; Ex. TX-064; Ex. TX-040; Ex. NM-059; Ex. NM-066; Ex. KY-058; Ex. VA-041; Ex. UT-050; Ex. UT-051; Ex. SD-045; Ex. WI-029; Ex. AK-060; Ex. MET-HOU-051; Ex. MET-HOU-052; Ex. MET-PIT-017; Ex. MET-PIT-036; Ex. MET-DEN-065; Ex. MET-PHX-004; Ex. MET-PHX-016; Ex. MET-LAS-018; Ex. MET-LAS-019; Ex. MET-LA-062). Pennsylvania's regulatory suspensions ran to September 30, 2021 and beyond (Ex. PA-040; Ex. PA-043). FERC's waiver regime ran from April 7, 2020 through the period (Ex. SEC-23-018; Ex. SEC-23-023). The modifications compelled were remote filing, deferred deadlines, closed offices, remote hearings and rolled compliance dates. The operation of permits, inspections and regulator filings was partially suspended in all six quarters because of these instruments.

SC. Equipment and supply

The plants that make tubulars, bits, pumps, wellheads, valves and mining machinery were closed or limited by Pennsylvania's, Michigan's, New York's, New Jersey's, Kentucky's and Washington's orders in the spring of 2020 (Ex. PA-002; Ex. MI-011; Ex. MI-026; Ex. SEC-09-001; Ex. NJ-011; Ex. KY-010; Ex. WA-016) and by every State's conditioned regime thereafter. The land-border limits governed every Canadian and Mexican component from March 21, 2020 to November 8, 2021 (Ex. FED-216; Ex. FED-239; Ex. FED-222; Ex. FED-245; Ex. FED-225; Ex. FED-248; Ex. FED-229; Ex. FED-252; Ex. FED-232; Ex. FED-255; Ex. FED-235; Ex. FED-258); the entry proclamations and the nonimmigrant suspension governed every foreign technician and commissioning engineer (Ex. FED-203; Ex. FED-211; Ex. FED-207; Ex. FED-208); the Title 42 order governed the ports of entry (Ex. FED-036; Ex. FED-037; Ex. FED-038). The respirator allocation rule governed every N95 the industry buys from April 7, 2020 to June 30, 2021 (Ex. FED-075; Ex. FED-077; Ex. FED-078; Ex. FED-079), and the scarce-materials designation ran to November 15, 2021 (Ex. ECO-A-062; Ex. ECO-A-069; Ex. ECO-A-070; Ex. ECO-A-071). The customs rule of April 20, 2020 postponed duties 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). Minnesota and Colorado prohibited price gouging (Ex. AGY-ST-UTILITIES-HOUSING-AG-031; Ex. AGY-ST-UTILITIES-HOUSING-AG-036). In 2021 the President ordered a review of the supply chains for critical minerals and energy and the Administration reported on them (Ex. ECO-A-072; Ex. ECO-A-101; Ex. ECO-A-102); North Carolina and Georgia suspended hours-of-service rules for fuel delivery in August 2021 (Ex. NC-066; Ex. GA-045); the Federal Reserve recorded "supply disruptions and labor shortages" (Ex. LAW-220; Ex. LAW-211). The modifications compelled were closed and limited plants, border limits on components and technicians, allocation of respirators and delayed deliveries. The operation of equipment and supply was partially suspended in all six quarters because of these instruments.

HR. Hiring, screening, training and credentialing

Hiring in this industry runs through clinics, training rooms, consulates and borders. The elective-procedure suspensions of the spring of 2020 closed the clinics that supply physicals, fit tests and drug screens: Texas Executive Order GA-09 (Ex. TX-004), Colorado Executive Order D 2020 009 (Ex. CO-007), Oklahoma's Fourth Amended Executive Order 2020-07 (Ex. OK-006), New Mexico's order of March 24, 2020 (Ex. NM-007; Ex. NM-013), Louisiana's LDH order (Ex. LA-045) and West Virginia's Executive Order 16-20 (Ex. WV-014), with West Virginia's orders of April 20 and 27, 2020 conditioning resumption on approved plans from April 28 and 30 (Ex. WV-023; Ex. WV-024) and the Wyoming Department of Health's guidance on resuming procedures recording the same regime (context; Ex. WY-011); the Department of State suspended routine visa services March 20, 2020 (Ex. FED-327) and the Citizenship and Immigration Services closed its offices to June 4 (Ex. FED-324; Ex. FED-325); the immigrant suspension barred entry of immigrants to February 24, 2021 (Ex. FED-210) and the nonimmigrant suspension barred entry of the H-1B, H-2B, L and certain J engineers and technicians to March 31, 2021 (Ex. FED-211); the H-2A and H-2B rules changed the terms of temporary hiring (Ex. FED-320; Ex. FED-321; Ex. FED-323; Ex. AGY-FED-LABOR-IMMIGRATION-014); the paid-leave mandates governed every employer of fewer than 500 employees to December 31, 2020 (Ex. FED-170; Ex. FED-171; Ex. FED-172). The State rules of Virginia, California, Oregon, Michigan and Washington required exclusion of exposed employees and written prevention programs (Ex. VA-036; Ex. VA-037; Ex. CA-023; Ex. CA-024; Ex. CA-065; Ex. OR-032; Ex. OR-041; Ex. AGY-ST-LABOR-WORKPLACE-062; Ex. AGY-ST-LABOR-WORKPLACE-050); New Mexico required four-hour case reporting (Ex. AGY-ST-LABOR-WORKPLACE-027); Michigan barred discipline of quarantined employees (Ex. MI-057); New Jersey's protocols bound every employer from November 5, 2020 through June 4, 2021 (Ex. NJ-036; Ex. NJ-051). Executive Order 13999 directed the federal standard and the National Emphasis Program directed inspections (Ex. FED-062; Ex. FED-082; Ex. FED-083). In the third quarter of 2021 the quarantine and isolation orders on exposed persons (Ex. RI-059; Ex. RI-060; Ex. RI-066; Ex. IN-092; Ex. MET-PIT-014; Ex. MET-SAN-024; Ex. PA-047; New Hampshire's published guidance implementing its isolation requirements, Ex. NH-063, context), the health-care standard and the local vaccination orders on the clinics (Ex. FED-080; Ex. MET-LA-023; Ex. MET-DEN-023; Ex. NY-071), the contractor vaccination rules (Ex. WA-077; Ex. FED-063; Ex. FED-274; Ex. OK-090; Ex. AGY-TRIBAL-040) and the pre-departure testing order (Ex. FED-042) governed. The modifications compelled were closed clinics, suspended consular processing, barred entry, mandated leave, exclusion of exposed workers, case reporting and vaccination conditions. The operation of hiring, screening, training and credentialing was partially suspended in all six quarters because of these instruments.

OP. Office, administration and telework

The stay-home orders closed or emptied every office in forty-two States and the District in March and April 2020 (Ex. CO-011; Ex. TX-008; Ex. MI-011; Ex. IL-005; Ex. OH-011; Ex. PA-002; Ex. CA-002; Ex. WA-016; Ex. LA-005; Ex. OK-011); Colorado ordered a fifty-percent cut in in-person work March 24 (Ex. CO-011); Texas held non-CISA offices to twenty-five percent in May 2020 (Ex. TX-014; Ex. TX-016) and Kentucky's office-based businesses to fifty percent from May 11 (Ex. KY-019). Pennsylvania mandated remote operation "Unless not possible" from July 16, 2020 and "Unless impossible" from November 27, 2020 to April 3, 2021 (Ex. PA-016; Ex. PA-017; Ex. PA-022; Ex. PA-023; Ex. PA-033), with the mitigation orders' remaining capacity, gathering, alcohol and workplace rules in force to 12:01 a.m. May 31, 2021 (Ex. PA-031; Ex. PA-035; Ex. PA-036); New Jersey required telework where practicable to June 4, 2021 (Ex. NJ-036; Ex. NJ-051); Minnesota to April 14, 2021 (Ex. MN-037); New Mexico closed non-essential businesses a second time in November 2020 (Ex. NM-039); Denver confined its residents nightly (Ex. MET-DEN-028). The face-covering orders, and the distancing, capacity and screening conditions that accompanied them, governed every office from July 2020 (Ex. TX-022; Ex. CO-031; Ex. PA-020; Ex. WY-040; Ex. UT-029; Ex. ND-066). The county orders of Houston, Dallas, San Antonio, Austin, Denver, Pittsburgh and New Orleans imposed health-and-safety policies on every commercial entity (Ex. MET-HOU-016; Ex. MET-HOU-020; Ex. MET-DFW-021; Ex. MET-DFW-023; Ex. MET-SAT-025; Ex. MET-AUS-010; Ex. MET-DEN-039; Ex. MET-PIT-006; Ex. MET-MSY-015). In the third quarter of 2021 the indoor face-covering requirements of New Mexico, Louisiana, Nevada, Oregon, Illinois, Washington and the District, the airborne-transmission controls those jurisdictions imposed on every office (Ex. NM-067; Ex. LA-036; Ex. NV-041; Ex. OR-048; Ex. IL-042; Ex. WA-080; Ex. DC-057) and the orders of the industry's cities (Ex. MET-HOU-039; Ex. MET-DFW-031; Ex. MET-SAT-067; Ex. MET-AUS-052; Ex. MET-DEN-026; Ex. MET-MSY-029; Ex. MET-LA-019; Ex. MET-SFO-010; Ex. MET-SEA-002; Ex. MET-CHI-026) governed every office. The modifications compelled were closure, remote operation, occupancy limits, masking and screening. The operation of office, administration and telework was partially suspended in all six quarters because of these instruments.

WF. Workforce availability

The workforce depends on schools, child care, transit and the freedom to leave the house. The school closures of spring 2020 in every State, the remote and hybrid orders of fall 2020 and the face-covering and quarantine orders of the 2021-22 year (Ex. IL-040; Ex. PA-042; Ex. OR-045; Ex. TN-036; Ex. DE-045; Ex. MET-HOU-038; Ex. MET-SAT-066; Ex. MET-AUS-050; Ex. MET-DEN-024; Ex. MET-DEN-081; Ex. MET-DEN-082; Ex. MET-SLC-076; Ex. MET-SLC-016; Ex. MET-SLC-081, context; Ex. VT-074; Ex. WY-060; Ex. MET-DET-013; Ex. MET-DET-015; New Hampshire's published toolkit implementing its 2021-22 school requirements, Ex. NH-066, context) kept employees home; the stay-home orders and curfews confined them (Ex. TX-008; Ex. CO-013; Ex. AZ-064; Ex. MET-DEN-028; Ex. MET-SAT-051); the quarantine orders on exposed and returning persons removed them from the site (Ex. ND-021; Ex. NM-024; Ex. KS-054; Ex. PA-021; Ex. RI-059; Ex. IN-092); the conveyance face-covering order governed every commute from February 1, 2021 (Ex. FED-020; Ex. MET-HOU-058; Ex. MET-DEN-043; Ex. MET-DEN-046; Ex. MET-PIT-042; Ex. MET-SLC-090); the paid-leave mandates and quarantine-leave statutes governed their absences (Ex. FED-170; Ex. MI-057; Ex. MET-PIT-046; Ex. MET-PIT-055); the public-employee vaccination orders reached the spouses and households of the workforce (Ex. WA-077; Ex. MET-SEA-018; Ex. MET-DEN-023; Ex. OK-090). The modifications compelled were absence, quarantine, masked commuting and mandated leave. The operation of the functions that depend on the workforce's presence was partially suspended in all six quarters because of these instruments.

CB. The customer base: producers, utilities and refiners

The producer is the service company's only customer; the utility and the steel mill are the miner's; the refiner is the operator's. The producers shut in and deferred under the New Mexico rule, the North Dakota waivers and the Texas extensions (Ex. SEC-23-008; Ex. SEC-23-028; Ex. SEC-23-003; Ex. SEC-23-006), and the Energy Information Administration attributed the demand collapse that drove them to "COVID-19-related shutdowns" and recorded the fewest active rigs in the history of the count (Ex. SEC-23-024; Ex. SEC-23-027). The utilities operated under disconnection moratoria in Kentucky, Arkansas, Connecticut, Pennsylvania, Illinois, Texas, New York, New Jersey, Washington, North Carolina and Montana (Ex. AGY-ST-UTILITIES-HOUSING-AG-001; Ex. AGY-ST-UTILITIES-HOUSING-AG-003; Ex. CT-065; Ex. AGY-ST-UTILITIES-HOUSING-AG-015; Ex. AGY-ST-UTILITIES-HOUSING-AG-009; Ex. AGY-ST-UTILITIES-HOUSING-AG-010; Ex. AGY-ST-UTILITIES-HOUSING-AG-016; Ex. AGY-ST-UTILITIES-HOUSING-AG-006; Ex. NJ-059; Ex. WA-014; Ex. NC-006; Ex. MT-011) and, as the municipal utilities' own announcements record, in San Antonio, Austin, Los Angeles and Sacramento (context: Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-041; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-071; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-060; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-019), and under FERC's waiver regime under Order No. 870 (Ex. SEC-23-018; Ex. SEC-23-017; Ex. SEC-23-023). The refiners of Louisiana, California, Washington and the Gulf Coast operated under the face-covering and workplace orders of their States and cities and sold into the demand the orders on travel had removed (Ex. LA-036; Ex. CA-024; Ex. WA-078; Ex. MET-LA-018; Ex. MET-SFO-010). The steel mills and machinery plants operated under the manufacturing closures (Ex. PA-002; Ex. MI-026). The Federal Reserve recorded "mandated closures" in the spring of 2020, "mandated restrictions" in the winter and "supply disruptions and labor shortages" in the summer of 2021 (Ex. LAW-210; Ex. LAW-218; Ex. LAW-219; Ex. LAW-249; Ex. LAW-250; Ex. LAW-220; Ex. LAW-211). The Notice's own supplier rule treats an order on a third party as an order that suspends the employer "due to" it, and the United States confirmed to the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party."²²⁵ The modifications compelled on the counterparties were shut-ins, deferred capital programs, cut runs and closed plants, each of which delayed or interrupted the industry's sales to them. The operation of the counterparty functions was partially suspended in all six quarters because of these instruments.

For each of the eleven functions, the instruments named above were orders from appropriate governmental authorities limiting commerce, travel or group meetings due to COVID-19; each compelled a modification of the function that closed it for certain purposes or conditioned its continuation; and but for each instrument no law required the modification. The operation of each function was partially suspended in each of the six quarters because of the instruments listed for that quarter, and an employer whose operation includes any of these functions was partially suspended in each quarter within the meaning of the Suspension Clause.²²⁶