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 quarter's first day and on its last, reached every function of the rental and leasing industry, and caused a temporary delay, interruption or termination of a more than nominal portion of its operations. This section states, for each quarter, the orders in force, how they reached the functions, and the finding in the terms fixed by Tri-State Memorial Hospital v. United States, No. 2:25-cv-0181-TOR, ECF No. 38 (E.D. Wash. May 28, 2026) (Tri-State), which holds that a partial suspension is "a temporary delay, interruption, or termination of a portion an employer's business" and that "due to" is but-for causation. The third quarter of 2021 is written as a self-contained section.
The second quarter of 2020
On April 1, 2020 stay-at-home or closure orders were in force in forty-two States and the District of Columbia; non-essential construction was stopped in Pennsylvania (from March 19 and 23), New York (from March 28), Michigan (from March 24), Washington (from March 25), Vermont (from March 25), Boston (from March 16), the six Bay Area counties (from March 31) and Alaska (non-listed construction from March 28), and New Jersey joined them at 8:00 p.m. on April 10; gatherings above ten were prohibited nearly everywhere and gatherings of any size in Alaska, California, Colorado, Idaho, Illinois, Michigan, Montana, New Jersey, New York, Utah, Washington and Wisconsin, with New Mexico at five; non-essential retail was closed to the public in some forty States; the motor-vehicle offices were closed or appointment-only in nearly every State; travelers were quarantined on arrival in Hawaii, Alaska, Rhode Island, Florida, Texas, Kentucky, Delaware, Vermont, West Virginia, North Dakota, South Carolina, Oklahoma, Montana and New Mexico, and by mid-April in Maine and Wyoming (April 3), Arizona (April 9) and Idaho (April 15), while Utah required a travel declaration of every arriving adult from April 10; and the entry proclamations, the land-border limitation and the visa suspension were in force.147 On June 30, 2020 construction had resumed everywhere under conditions (Pennsylvania May 1; Washington April 24 to 29; Vermont May 11; Michigan May 7; New York May 15; New Jersey May 18; Boston May 5 to 26; the Bay Area May 4), retail was open at twenty-five to fifty percent in most States and curbside or appointment-only in parts of the Northeast until mid-June, gathering caps of ten to fifty governed most States, face coverings, one of the airborne-transmission controls the reopening orders attached to every indoor business, were required in about half, the motor-vehicle offices were reopening by appointment, Hawaii's and Alaska's quarantines were in force and the tri-State quarantine had taken effect on June 25, 2020.148 The federal paid-leave mandate ran the whole quarter; the President added Brazil to the entry suspensions on May 26 and suspended H-1B, H-2B, L and J entry on June 24; the Department of Transportation's order fixed the airline network from April 7; the State Department's visa suspension ran the whole quarter.149 In the metros, the Bay Area barred construction to May 3, Boston to May 5 and 26, Dallas and Denton Counties closed showrooms, Cincinnati closed bike-share and scooter rental businesses by name, Denver, Orlando and San Diego closed or converted their convention centers, and Riverside County confined every short-term rental to COVID-19 uses.150
EQ: the construction shutdowns of Pennsylvania, New York, New Jersey, Michigan, Washington, Vermont, Boston, the Bay Area and Alaska were orders on the equipment renter's customers that idled the rented machine where it stood and stopped new rentals; the restart orders fixed the crew sizes, screening, distancing and site plans under which every delivery and service call ran; the industry's own filings state that "customers we serve that were not designated essential businesses were closed throughout a significant portion of the quarter" under "the regulatory orders addressing COVID-19."151 CR: the stay-at-home orders confined the traveler to essential travel in terms ("All travel ... except Essential Travel and Essential Activities ... is prohibited"); the arrival quarantines of eighteen States, Utah's travel declaration and the entry and border orders removed the interstate and international traveler; the Illinois-model orders named "vehicle rental services" essential for Essential Activities and no others; Michigan's order named no rental function; New Jersey's order named no rental business among essential retail; the industry's filings state that "shelter-in-place and similar orders and travel restrictions" cut United States rental-car revenue seventy percent and utilization "to 28% from 82%."152 PR: the gathering bans were orders on the events themselves, and they named the events ("weddings, faith gatherings, graduations, and funeral events"); convention centers were closed and converted; the season the event renter had booked in the autumn of 2019 was prohibited by order in March 2020.153 CN and YD: the non-essential retail closures of some forty States closed the showrooms in which consumer agreements are written and the retail partners' stores that host them ("the temporary closure of all Company-operated store showrooms"; "approximately 65% of our staffed Preferred Lease locations" closed); the reopening orders fixed occupancy, curbside, appointment and face-covering conditions; Pennsylvania's list opened the rental counter in a Commonwealth whose construction and retail customers were closed.154 SC: Michigan's orders closed the manufacturers' plants; the Federal Reserve recorded that autos "mostly shut down"; the motor-vehicle offices that plate new fleet and transfer title on disposal were closed.155 HR and YD: the motor-vehicle closures suspended commercial-driver testing and credential renewal in nearly every State.156 OP: the telework mandates of New York, New Jersey, Colorado, Delaware, Washington, Oregon and Kansas reached every reservation and dispatch office.157 WF: every State closed its schools; the paid-leave mandate made the closure a compulsory leave event; the stay-at-home orders confined the workforce.158 CB: every customer class was under order. The Bureau of Labor Statistics recorded the result for the industry: employment fell from 585,700 in February 2020 to 462,300 in April 2020.159
During the calendar quarter beginning April 1, 2020 and ending June 30, 2020 (with the orders of March 13 through March 31, 2020 counted toward it), orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the stay-at-home and non-essential-business closure orders of forty-two States and the District of Columbia (Ex. IL-005, Ex. OH-011, Ex. CA-007, Ex. WA-016, Ex. NJ-004, Ex. NY-002, Ex. PA-002, Ex. MI-017, Ex. CO-012, Ex. HI-004, Ex. MT-009, Ex. AL-013, Ex. TX-008, Ex. FL-010, Ex. GA-010, Ex. IN-006, Ex. DC-006 and their counterparts), the construction shutdowns and restart conditions of Pennsylvania, New York, New Jersey, Michigan, Washington, Vermont, Boston, the Bay Area and Alaska (Ex. SEC-09-007, Ex. SEC-09-008, Ex. NY-015, Ex. SEC-09-001, Ex. SEC-09-017, Ex. SEC-09-002, Ex. SEC-09-003, Ex. SEC-09-031, Ex. SEC-07-022, Ex. SEC-09-033, Ex. SEC-09-004, Ex. SEC-09-005, Ex. SEC-09-030, Ex. SEC-09-027, Ex. SEC-09-028, Ex. SEC-09-029, Ex. SEC-09-024, Ex. SEC-09-026, Ex. MET-SFO-002, Ex. MET-SFO-047, Ex. SEC-09-040, Ex. AK-013), the gathering bans of forty-six States and the District (Ex. AK-013, Ex. WA-016, Ex. IL-005, Ex. NY-005, Ex. NM-006, Ex. KY-006, Ex. MD-007, Ex. VA-006, Ex. NC-005, Ex. TN-007, Ex. WY-005 and their counterparts), the non-essential retail closures and reopening conditions of some forty States (Ex. NJ-004, Ex. KY-008, Ex. DE-005, Ex. MD-005, Ex. SC-011, Ex. AL-011, Ex. IA-005, Ex. MN-010, Ex. NV-005, Ex. NV-014, Ex. OR-007, Ex. VT-010, Ex. ME-007 and their counterparts), the traveler quarantines of eighteen States and Utah's travel-declaration order (Ex. HI-003, Ex. HI-031, Ex. AK-012, Ex. FL-011, Ex. FL-012, Ex. FL-015, Ex. TX-006, Ex. TX-007, Ex. KY-011, Ex. DE-010, Ex. WV-012, Ex. SC-007, Ex. OK-011, Ex. MT-010, Ex. ID-004, Ex. UT-007, Ex. UT-008, Ex. ND-021, Ex. AZ-012, Ex. WY-010, Ex. VT-012, Ex. ME-013, Ex. NY-006, Ex. ECO-C-018, and New Mexico's Executive Order 2020-013 of March 27, 2020), the entry proclamations and land-border notices (Ex. FED-200, Ex. FED-201, Ex. FED-202, Ex. FED-203, Ex. FED-204, Ex. FED-210, Ex. FED-211, Ex. FED-216, Ex. FED-239, Ex. FED-217, Ex. FED-241) and the State Department's suspension of routine visa services, the paid-leave mandate (Ex. FED-170, Ex. FED-171), the motor-vehicle office closures and credential extensions of nearly every State (Ex. AGY-ST-DMV-SOS-RECORDERS-076, Ex. AGY-ST-DMV-SOS-RECORDERS-006, Ex. AGY-ST-DMV-SOS-RECORDERS-043, Ex. AGY-ST-DMV-SOS-RECORDERS-005, Ex. AGY-ST-DMV-SOS-RECORDERS-036, Ex. NY-002, Ex. NJ-004, Ex. IN-006, Ex. OH-012, Ex. KY-020, Ex. WI-002, Ex. CT-003, Ex. CT-062, Ex. MD-098, Ex. IA-002, Ex. VT-006, Ex. MT-028, Ex. NV-006), the Department of Transportation's minimum-service order (Ex. AGY-AVIATION-SURFACE-028) and the county and city orders of the largest metros (Ex. MET-SFO-001, Ex. MET-SFO-002, Ex. MET-SFO-047, Ex. SEC-09-024, Ex. MET-DFW-005, Ex. MET-DFW-007, Ex. MET-DFW-079, Ex. MET-CIN-049, Ex. MET-DEN-001, Ex. MET-ORL-060, Ex. MET-SAN-032, Ex. MET-RIV-005, Ex. MET-NYC-006, Ex. MET-LA-003, Ex. MET-CHI-001, Ex. MET-HOU-005, Ex. MET-PHL-002, Ex. MET-ATL-001, Ex. MET-STL-006, Ex. MET-MSY-003, Ex. MET-MSP-002, Ex. MET-MIA-001), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in the rental and leasing industry throughout the United States. They did so by closing the job sites on which rented equipment earns, confining and quarantining the travelers who rent vehicles, prohibiting the events for which tents, seating and staging are booked, closing the showrooms in which consumer agreements are written, closing the offices through which every fleet vehicle is registered and sold, and fixing the conditions of every yard, counter and delivery. The operation of the trade or business of employers in this industry was partially suspended during the calendar quarter due to those orders. The agencies' own notices of the closures, suspensions and extensions those orders compelled (Ex. NJ-107, Ex. PA-102, Ex. FED-327, Ex. AGY-ST-DMV-SOS-RECORDERS-002, Ex. AGY-ST-DMV-SOS-RECORDERS-007, Ex. AGY-ST-DMV-SOS-RECORDERS-018) are cited as the record of those actions and not as orders.
The third quarter of 2020
On July 1, 2020 every construction site in the closure States ran under the restart conditions that had replaced the shutdown orders, and those conditions were themselves orders: those of New York (the Interim Guidance for Construction, mandatory to June 25, 2021), New Jersey (Executive Order 142's protocols), Pennsylvania (the construction guidance and the Worker Safety Order), Washington (the Phase 1 and Phase 2 job-site requirements enforced under WAC 296-800-14035), Michigan (Executive Order 2020-97's safeguards), Vermont (Work Safe requirements), Kentucky (Healthy at Work Requirements for Construction), Virginia (the DOLI emergency standard from July 27, 2020), Minnesota (certified Preparedness Plans) and the Bay Area (the construction protocols).160 Gathering caps ran from ten (Washington's Phase 3 from July 24; Minnesota's social gatherings; Kentucky from July 20) through twenty-five (New Jersey indoors from August 4; Oregon's Phase I; Pennsylvania indoors from July 16) and fifty (New York's Phase Four regions; Illinois; Georgia; Nevada) to 250, California barred gatherings, and events above 250 were barred in nearly all States; the tri-State quarantine (New York, New Jersey, Connecticut, mandatory in Connecticut from July 24), New Mexico's quarantine of every arrival from July 1, Chicago's Emergency Travel Order from July 6, the District's quarantine from July 27, Massachusetts's Order No. 45 from August 1, and the Hawaii, Alaska, Rhode Island, Vermont, Maine and Kansas quarantines ran the quarter; Kauai's Rule 15 made every rental car company the enforcement point of Hawaii's quarantine from August 11, 2020; Hawaii's interisland quarantine returned August 11; retail ran at fifty to seventy-five percent under face-covering and distancing duties placed on the business in about thirty-four States by September 30; Kansas placed on every business, as an exposure-control duty enforced against the business itself, the obligation to require a mask of every employee, customer and visitor from July 3; the entry proclamations and land-border notices ran every day; the paid-leave mandate ran the whole quarter; the Department of Transportation's order fixed the network to September 30, 2020; and the CDC's eviction moratorium took effect September 4.161 On September 30, 2020 the caps of ten to fifty remained in force in the Northeast, the West Coast, Illinois, Michigan, Minnesota, New Mexico and Oregon, face-covering requirements, with the distancing duties the reopening orders paired with them, ran in about thirty-four States, the quarantines of Hawaii, Alaska, New York, New Jersey, Connecticut, Maine, Vermont, Rhode Island, New Mexico, Kansas, Massachusetts, the District and Chicago were in force, and the federal entry, border, paid-leave, minimum-service and eviction orders ran in every State; in Florida, whose Executive Order 20-244 of September 25, 2020 (Ex. FL-047) is itself a gubernatorial order fixing what the localities could require of the businesses within them, and in Missouri, whose statewide order expired June 15, 2020 (Ex. MO-007), the county and city layer (the Midwest and the preemption States above; the metro table on this page) and the federal layer carried the quarter.162
EQ: every job site ran under a restart order that fixed crew size, screening, distancing and visitor access, and the equipment renter's deliveries and service calls ran under them. CR: the traveler quarantines of the Northeast, New Mexico, Chicago, the District, Hawaii and Alaska, and the entry and border orders, governed every interstate and international renter; Kauai made the rental company an enforcer. PR: the caps of ten to fifty were orders on every event; the season ran under them. CN and YD: every reopened showroom ran at a percentage of capacity, under masked-entry and distancing conditions the orders placed on the retailer to enforce. SC: the motor-vehicle offices reopened by appointment and worked through the spring's backlog under extended credentials. WF: the paid-leave mandate ran; schools opened remote or hybrid in most States. The Quarterly Census of Employment and Wages recorded industry employment 22.7 percent below July 2019.163
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 construction restart conditions and job-site standards (Ex. SEC-09-017, Ex. NY-105, Ex. SEC-09-003, Ex. SEC-09-008, Ex. PA-008, Ex. SEC-09-005, Ex. AGY-ST-LABOR-WORKPLACE-050, Ex. SEC-09-034, Ex. KY-066, Ex. SEC-09-012, Ex. SEC-07-017, Ex. SEC-09-040), the gathering caps of every State (Ex. IL-019, Ex. NJ-004, Ex. PA-016, Ex. MA-025, Ex. OR-007, Ex. WA-016, Ex. CA-017, Ex. MN-022, Ex. KY-023, Ex. SC-027, Ex. GA-024, Ex. VA-015, Ex. WY-021, Ex. NV-016 and their counterparts), the traveler quarantines (Ex. NY-006, Ex. NY-077, Ex. CT-023, Ex. ECO-C-005, Ex. MA-025, Ex. NM-024, Ex. NM-031, Ex. MET-CHI-019, Ex. ECO-C-031, Ex. HI-014, Ex. HI-057, Ex. HI-031, Ex. MET-HNL-095, Ex. AK-038, Ex. AK-039, Ex. ME-026, Ex. VT-012, Ex. KS-054), the retail capacity and face-covering orders (Ex. NY-125, Ex. SEC-07-013, Ex. PA-008, Ex. KY-064, Ex. KS-030, Ex. OH-030, Ex. AR-060, Ex. MT-016, Ex. MN-027, Ex. WA-040, Ex. TX-011 and their counterparts), the entry proclamations and land-border notices (Ex. FED-200, Ex. FED-201, Ex. FED-202, Ex. FED-203, Ex. FED-204, Ex. FED-211), the paid-leave mandate (Ex. FED-170, Ex. FED-171), the Department of Transportation's order (Ex. AGY-AVIATION-SURFACE-028), the CDC eviction moratorium (Ex. FED-022) and the metros' orders (Ex. MET-CHI-019, Ex. MET-LAS-042, Ex. MET-BOS-021, Ex. MET-PHX-023, Ex. MET-CIN-001, Ex. MET-HNL-095), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by conditioning every job site, quarantining every interstate traveler into thirteen jurisdictions, capping every event, conditioning every showroom and fixing the network of flights. The operation of the trade or business of employers in this industry was partially suspended during the calendar quarter due to those orders.
The fourth quarter of 2020
On October 1, 2020 the third quarter's regime continued with the cluster and tier systems of New York, California, Colorado, New Mexico and Illinois; the CDC re-issued its Title 42 order on October 13 and its Conditional Sailing Order took effect October 30; the Department of Homeland Security renewed the border limitation monthly.164 The winter re-tightening began in October and ran through December: indoor gatherings were prohibited or cut to a household in California, Colorado's Red counties, Illinois (Tier 3 from November 20, with meeting venues barred from hosting gatherings of any size), Michigan (all indoor non-residential gatherings from November 18), Minnesota (all social gatherings and receptions from November 20 to December 18), New Mexico, Oregon, Washington (receptions prohibited from November 17), Vermont and Rhode Island, and capped at ten in New York, New Jersey, Massachusetts, Pennsylvania, Delaware, Kentucky, Virginia and the District; retail fell to twenty-five percent in California's regional order, Colorado's Red counties, Illinois, Washington and Massachusetts and closed in New Mexico from November 16 to December 1; traveler quarantines were added or expanded in Pennsylvania (November 20), Maryland (December 17), Connecticut (December 19), New Hampshire (November 15), Vermont (November 10), Washington (December 21) and New Mexico (October 29); telework was re-imposed in Pennsylvania, Rhode Island, Vermont, Oregon, Washington, Colorado, California and Massachusetts; Ohio provided from November 16 that no retailer "shall be open for business or operate unless in compliance" with its facial-covering order; curfews ran in Virginia, North Carolina and Ohio; and on December 27, 2020 Congress appropriated the on-airport car rental relief.165 On December 31, 2020 the winter regime was at its peak in every region, the paid-leave mandate expired, and the quarantines of Hawaii, Alaska, New York, New Jersey, Connecticut, Massachusetts, Rhode Island, Vermont, Maine, New Mexico, Kansas, the District, Pennsylvania, Chicago and Maryland were in force.166
PR: the winter orders prohibited the event renter's market outright in a dozen States and cut it to ten in a dozen more, in the holiday season; the convention centers stayed closed or converted. CN and YD: the showroom fell to twenty-five percent or closed. CR: the traveler met quarantines in fifteen jurisdictions, and the entry and border orders removed the international traveler through the holidays. EQ: the job-site standards ran, MIOSHA's emergency rules bound every Michigan workplace from October 14, Cal/OSHA's standard every California workplace from November 30, Oregon OSHA's every Oregon workplace from November 16, and Colorado's Level Red closed field services. OP: telework was re-imposed in eight States. WF: schools ran remote or hybrid, and the paid-leave mandate ran to December 31. Congress's appropriation of December 27, 2020, enacted while the entry proclamations, the land-border notices and fifteen traveler quarantines were in force, is the legislative record that the airport counter could not meet its rent on that date.167
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 winter re-tightening orders (Ex. CA-020, Ex. CA-055, Ex. CO-035, Ex. CO-036, Ex. CO-081, Ex. IL-031, Ex. MI-059, Ex. MI-060, Ex. MN-031, Ex. MN-032, Ex. NM-039, Ex. NM-040, Ex. NM-041, Ex. OR-033, Ex. OR-035, Ex. WA-047, Ex. VT-034, Ex. NJ-037, Ex. NJ-039, Ex. NY-008, Ex. NY-037, Ex. MA-033, Ex. MA-040, Ex. PA-022, Ex. PA-028, Ex. DE-033, Ex. KY-033, Ex. VA-016, Ex. MD-021, Ex. OH-037, Ex. OH-038, Ex. OH-039, Ex. IA-030, Ex. IA-033, Ex. NE-021, Ex. MT-018, Ex. UT-029, Ex. WY-040, Ex. NV-030, Ex. NV-050, Ex. ID-009, Ex. ID-010, Ex. RI-029, Ex. DC-013), the traveler quarantines (Ex. PA-021, Ex. PA-070, Ex. MD-023, Ex. MD-050, Ex. ECO-C-007, Ex. NH-027, Ex. VT-080, Ex. WA-054, Ex. NM-037, Ex. NY-006, Ex. CT-023, Ex. MA-025, Ex. HI-014, Ex. HI-016, Ex. AK-035, Ex. KS-055, Ex. MET-CHI-019), the statewide face-covering orders carried into the quarter, each an airborne-transmission control on every indoor business and several placing the duty of enforcement on the business itself (Ex. KS-030, Ex. OH-030, Ex. AR-060, Ex. MT-016, Ex. MN-027, Ex. WA-040), the workplace standards (Ex. MI-054, Ex. SEC-09-010, Ex. SEC-09-011, Ex. SEC-09-013, Ex. SEC-09-012, Ex. WA-099, Ex. SEC-09-023), the entry proclamations, land-border notices and Title 42 order (Ex. FED-200, Ex. FED-201, Ex. FED-202, Ex. FED-203, Ex. FED-204, Ex. FED-211, Ex. FED-037), the paid-leave mandate to December 31 (Ex. FED-170, Ex. FED-171), the CDC eviction moratorium (Ex. FED-022) and the metros' orders (Ex. MET-LA-012, Ex. MET-DEN-027, Ex. MET-DET-001, Ex. MET-CHI-019), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by prohibiting or capping every event in the holiday season, cutting or closing every showroom, quarantining the traveler in fifteen jurisdictions, conditioning every yard and re-imposing telework in eight States. The operation of the trade or business of employers in this industry was partially suspended during the calendar quarter due to those orders.
The first quarter of 2021
On January 1, 2021 the winter regime was at its peak in California, Illinois, Michigan, Minnesota, New Mexico, Oregon, Washington, Pennsylvania, New York, New Jersey, Massachusetts, Colorado, Kentucky, Maryland, Virginia and North Carolina, and every State except Missouri, South Dakota and Kansas was under a statewide instrument at least as restrictive as its June 30, 2020 regime.168 The federal transport layer arrived: Executive Order 13991 required face coverings and distancing of every person in every federal building from January 20; Executive Order 13998 directed face coverings, as an airborne-transmission control, in every airport and conveyance from January 21; the Office of Management and Budget capped federal workplaces at twenty-five percent from January 24; Proclamation 10143 continued the Schengen, British, Irish and Brazilian entry suspensions from January 26 and added South Africa from January 30; the inbound-testing order took effect January 26; the conveyance and transportation-hub order took effect at 11:59 p.m. on February 1 and the Transportation Security Administration's directives the same day; the Department of Transportation's order fixed the network from January 15 to March 31; and the Occupational Safety and Health Administration's National Emphasis Program began March 12.169 The land-border limitation was renewed January 19, February 23 and March 19.170 The winter orders stepped down through the quarter: North Dakota January 18; Massachusetts January 25 and February 8; Nebraska January 30; Minnesota January 10 and March 15; Illinois January 15 to February 4; Michigan February 1 and March 5; Iowa February 7; Indiana February 1; Ohio February 11; Montana February 12; Texas March 10; Mississippi March 3; Maryland March 12; Oklahoma March 12; Wyoming March 16; Connecticut's caps March 19; Arizona March 25; Kansas March 31.171 On March 31, 2021 capacity and gathering caps remained in the Northeast, the West Coast, Illinois, Michigan, Minnesota, New Mexico, Maryland, Virginia, the District and Hawaii; the traveler quarantines of Hawaii, Kansas, New York (to April 1), Rhode Island, Vermont, Maine, New Hampshire, the District and Chicago were in force, and those of Massachusetts (March 22), Connecticut (March 19), Pennsylvania (March 1), New Mexico (February 10) and Alaska (February 14) had run to their dates inside the quarter; Congress had re-enacted the Suspension Clause for the third quarter of 2021 and appropriated $800,000,000 for relief from airport rent and minimum annual guarantees on March 11; and the Federal Aviation Administration had announced the first allocations of that relief on February 19.172
CR: from February 1, 2021 every airport counter, consolidated rental car facility and rental-car shuttle in the country operated inside a transportation hub in which federal law imposed an airborne-transmission control, a mask of every person on pain of criminal penalty, and every airport operator was directed to enforce it; the entry suspensions, the inbound-testing order and the border limitation removed the international traveler; the traveler quarantines of the Northeast, Hawaii and Kansas ran through their dates. PR: the winter caps stepped down but did not vanish: Tennessee's ended January 31, Idaho's February 2, Montana's February 12 and Mississippi's March 3; Texas, Maryland, Oklahoma, Wyoming and Arizona released theirs only between March 10 and March 25; and the caps of the twenty-four States listed for April 1, 2021 in the next section ran past March 31, so that every event the renter served in those States in this quarter was an event an order had sized. CN and YD: the showroom ran at the winter percentages through the step-downs. EQ: the workplace standards of California, Oregon, Virginia (permanent from January 27), Washington and Michigan bound every yard and site. OP: the telework mandates of Pennsylvania (to April 4), New Jersey (to June 4), California, Oregon and Washington ran. WF: the schools ran remote or hybrid.173
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 continuing winter orders through their stepped expiry (Ex. CA-020, Ex. CA-017, Ex. CA-055, Ex. CO-035, Ex. CO-036, Ex. IL-031, Ex. MI-063, Ex. MN-032, Ex. MN-037, Ex. NM-041, Ex. OR-035, Ex. WA-047, Ex. WA-064, Ex. VT-034, Ex. NJ-039, Ex. NY-008, Ex. NY-037, Ex. MA-040, Ex. PA-022, Ex. PA-028, Ex. DE-033, Ex. KY-033, Ex. VA-016, Ex. MD-021, Ex. MD-026, Ex. OH-039, Ex. OH-043, Ex. IA-033, Ex. MT-018, Ex. MT-020, Ex. WY-040, Ex. WY-048, Ex. NV-030, Ex. NV-036, Ex. ID-010, Ex. ID-012, Ex. NH-031, Ex. WI-017, Ex. WI-020, Ex. TX-029, Ex. OK-039, Ex. IN-059, Ex. AZ-036, Ex. AZ-037), the federal conveyance and transportation-hub order and security directives (Ex. FED-020, Ex. FED-050, Ex. FED-054, Ex. FED-057, Ex. FED-061), the federal workplace orders (Ex. FED-060, Ex. FED-270), the entry proclamations, inbound-testing order and land-border notices (Ex. FED-200, Ex. FED-201, Ex. FED-207, Ex. FED-042), the workplace standards (Ex. SEC-09-011, Ex. VA-037, Ex. SEC-09-013, Ex. WA-099, Ex. MI-054, Ex. SEC-09-023), the traveler quarantines (Ex. NY-006, Ex. CT-023, Ex. ECO-C-007, Ex. MA-025, Ex. PA-021, Ex. NH-027, Ex. NH-059, Ex. NH-074, Ex. MD-023, Ex. HI-016, Ex. KS-055 (the list in force from December 1, 2020), Ex. VT-080, Ex. VT-082, Ex. ME-026, Ex. ME-053, Ex. NH-038, Ex. DC-050, Ex. MET-CHI-019), the Department of Transportation's order (Ex. AGY-AVIATION-SURFACE-033), the Occupational Safety and Health Administration's program (Ex. FED-082) and the metros' orders (Ex. MET-LA-012, Ex. MET-PHL-013, Ex. MET-DEN-027), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by making every airport a federally regulated hub, removing the international traveler, quarantining the interstate traveler in the Northeast, Hawaii and Kansas, capping every event and showroom through the winter's step-downs, and conditioning every yard. The operation of the trade or business of employers in this industry was partially suspended during the calendar quarter due to those orders.
The second quarter of 2021
On April 1, 2021 capacity and gathering caps were in force in about twenty-four States (California to June 15; Colorado to April 16; Connecticut to May 20; the District, Delaware and Rhode Island to May 21; Hawaii throughout; Illinois and Kentucky to June 11; Massachusetts to May 29; Maryland to May 15; Maine to May 24; Michigan to June 22; Minnesota to May 27; New Jersey to May 28 and June 4; New Mexico to July 1; Nevada to June 1; New York to June 15; Oregon and Washington to June 30; Pennsylvania to May 31; Virginia to May 28; Vermont to June 14), and the traveler quarantines of Hawaii, Kansas, Rhode Island (to July 6), Vermont (to June 14), Maine (to May 1) and New Hampshire (to May 7) were in force.174 The federal transport layer ran every day: the conveyance order, the aviation directives ratified April 20, the surface directive extended May 12 through September 13, the entry proclamations with India added May 4, the inbound-testing order, the border limitation renewed April 22, May 24 and June 23, and the Department of Transportation's order from May 14 to September 30.175 The Occupational Safety and Health Administration's Healthcare Emergency Temporary Standard took effect June 21; Cal/OSHA readopted its standard June 17; Oregon OSHA made its rule permanent May 4 and amended it June 30; Washington readopted WAC 296-800-14035 May 24; New Jersey carried Executive Order 192's requirements for unvaccinated or unverified employees through Executive Orders 242 and 243 from May 28 and June 4; New York readopted Subpart 66-3 on June 23 and enacted the HERO Act on May 5.176 The Federal Aviation Administration published its rent-relief information collection June 11 and announced the Airport Rescue Grant allocations June 22.177 On June 30, 2021 the federal conveyance, entry, inbound-testing, land-border and minimum-service orders ran in every State; the Healthcare ETS was nine days old; Hawaii's Safe Travels and Kansas's list ran; the general business regimes of New Mexico (to July 1), Rhode Island (to July 6), Washington (to midnight June 30) and Hawaii were in force; face coverings were required of the unvaccinated, as one of the exposure-control conditions those States kept on every indoor business, in Connecticut, the District, New York, New Jersey workplaces, New Mexico, Nevada, Rhode Island and Washington; the workplace standards of California, Oregon, Virginia, Washington, New Jersey, New Mexico and New York bound every yard; and the motor-vehicle offices of Oregon and the District ran appointment-only. In every other State the general capacity and gathering order had run to the date the 2021 transition passage above records, inside this quarter, and the instruments each ending order kept alive are listed there.178
PR: the caps ran to their expiry dates in twenty-four States, which fell between April 16 and June 30, 2021, so that the event renter's spring season ran under caps in half the country and its June weddings in a quarter of it, with Hawaii capped throughout. CN and YD: the showroom percentages ran to the same dates. CR: every airport and shuttle ran under the federal conveyance order, an airborne-transmission control, every day; India was added to the entry suspensions; the border stayed limited to essential travel; Hawaii's, Kansas's, Rhode Island's, Vermont's, Maine's and New Hampshire's quarantines ran to their dates; the Department of Transportation's order fixed the network. EQ: the job-site standards of California, Oregon, Virginia, Washington, Michigan (to June 22) and New Jersey ran. WF: schools ran remote or hybrid to the end of the 2020-21 year; New Jersey's and New York's workplace rules for unvaccinated employees ran.179
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 capacity and gathering caps in force to their expiry (Ex. CA-017, Ex. CA-055, Ex. CA-029, Ex. CO-051, Ex. CT-046, Ex. DC-073, Ex. DE-037, Ex. DE-038, Ex. HI-019, Ex. HI-023, Ex. IL-036, Ex. IL-037, Ex. KY-049, Ex. MA-045, Ex. MA-048, Ex. MD-026, Ex. MD-030, Ex. ME-057, Ex. MI-073, Ex. MI-076, Ex. MN-038, Ex. NJ-050, Ex. NJ-051, Ex. NM-057, Ex. NM-060, Ex. NV-036, Ex. NV-038, Ex. NV-074, Ex. NY-054, Ex. NY-057, Ex. OR-035, Ex. OR-043, Ex. PA-033, Ex. PA-035, Ex. PA-036, Ex. RI-043, Ex. RI-044, Ex. VA-017, Ex. VT-043, Ex. VT-098, Ex. WA-064, Ex. WA-065), the federal conveyance order and directives (Ex. FED-020, Ex. FED-051, Ex. FED-056), the entry proclamations, inbound-testing order and land-border notices (Ex. FED-200, Ex. FED-201, Ex. FED-207, Ex. FED-208, Ex. FED-042, Ex. FED-232, Ex. FED-255), the Department of Transportation's order (Ex. AGY-AVIATION-SURFACE-035), the workplace standards (Ex. CA-024, Ex. CA-067, Ex. OR-041, Ex. OR-044, Ex. VA-037, Ex. WA-067, Ex. NJ-050, Ex. NJ-051, Ex. NY-133, Ex. NY-082, Ex. FED-080), the traveler quarantines (Ex. HI-023, Ex. HI-031, Ex. KS-056, Ex. RI-036, Ex. RI-043, Ex. RI-044, Ex. VT-082, Ex. VT-086, Ex. ME-026, Ex. ME-053, Ex. NH-038), the motor-vehicle credential extensions and the Governor of Texas's title and registration waiver in force to April 14, 2021 (Ex. MD-031; the waiver recorded in Ex. TX-069) and the metros' orders (Ex. MET-SAN-022, Ex. MET-SAN-024 (the April 5, 2021 quarantine order, as revised July 22, 2021), Ex. MET-NYC-014, Ex. MET-HOU-037), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by capping every event and showroom in half the country into May and June, making every airport a federally regulated hub every day, removing the international traveler and quarantining the traveler in six States, and conditioning every yard. The operation of the trade or business of employers in this industry was partially suspended during the calendar quarter due to those orders. The Oregon and District motor-vehicle agencies' notices of their appointment-only regimes (Ex. OR-057, Ex. DC-082) and the Texas Department of Motor Vehicles' notice of the waiver's end (Ex. TX-069) are cited as the record of those regimes and not as orders.
The third quarter of 2021
Between July 1 and September 30, 2021, the operation of the rental and leasing industry was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19. Orders in force on every day of the quarter governed every airport counter, consolidated rental car facility and rental-car shuttle in the country, every land crossing with Canada and Mexico, every international traveler at every port of entry, every arriving passenger in Hawaii, every traveler into Kansas from the listed States, and every workplace in California, Oregon, Virginia, Washington, New Jersey, New Mexico and New York; orders issued inside the quarter reinstated, as workplace infection-prevention and exposure-control requirements on every indoor business, the face covering of every customer and worker in seven States and the District of Columbia and in the metropolitan areas where the industry's largest yards, counters and event warehouses sit, conditioned entry to every indoor event venue in New York City, San Francisco and New Orleans on proof of vaccination, capped every social gathering in Hawaii at ten indoors and twenty-five outdoors, activated New York's exposure-prevention plans in every private workplace, and imposed face-covering and quarantine requirements on the children of the industry's hourly workforce in at least eighteen States and the District. This section is written to be read alone.
A. The Service's premise about the quarter and what the statute asks
The Service's form letter states that "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."180 For the third quarter of 2021 that sentence is measured against the instruments listed in subpart B, each of which was in force on some day between July 1 and September 30, 2021, and most of which were in force on every day. The sentence describes a quarter that did not occur, and subparts B through F describe the one that did.
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)."181 Congress enacted that clause for this quarter on March 11, 2021, five weeks after the conveyance order made a face covering, as an airborne-transmission control, federal law at every airport and a year after the land borders were limited to essential travel, in the same Act in which it appropriated $800,000,000 of relief from the airport rental counter's rent and minimum annual guarantees, relief it does not appropriate for rent a tenant can pay, and on November 15, 2021 it terminated the following quarter and left this one in place.182 The Notice's own words, which Notice 2021-49 extends to this quarter, confirm the result: a modification required by order that "has more than a nominal effect on the business operations under the facts and circumstances" is a partial suspension, "requiring employees and customers to wear face coverings" and "limiting occupancy to provide for social distancing" are such modifications, an employer that "reduces its operating hours due to a governmental order is considered to have partially suspended its operations," and an employer suspended "during a portion of a calendar quarter is an eligible employer for the entire calendar quarter."183
B. The instruments in force from July 1 through September 30, 2021
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); the President under Executive Order 13998. Dates: the order effective 11:59 p.m. February 1, 2021, "until further notice"; Security Directive 1582/84-21-01A effective May 12, 2021 with an expiration date of September 13, 2021, and 1582/84-21-01B effective September 14, 2021 to January 18, 2022; the airport directive SD 1542-21-01 (Ex. FED-054), as continued by SD 1542-21-01A to September 13, 2021 and SD 1542-21-01B from September 14, 2021, the successors not separately exhibited, ratified April 20, 2021. Operative clause (an airborne-transmission control on every conveyance and transportation hub): "Persons must wear masks over the mouth and nose when traveling on conveyances into and within the United States"; "A person must also wear a mask while at any transportation hub"; "Transportation hub means any airport, bus terminal, marina, seaport or other port, subway station, terminal (including any fixed facility at which passengers are picked-up or discharged), train station, U.S. port of entry, or any other location that provides transportation"; the directives required every operator to give notice that "Federal law requires wearing a mask," to refuse entry or boarding to the unmasked and to remove violators. Enforcement: federal law, the order providing that violation is enforceable through the criminal penalties of 42 U.S.C. § 271 and 18 U.S.C. § 3559. Status: in force July 1 and September 30, 2021. Functions: CR (every airport counter, consolidated rental car facility and rental-car shuttle in the United States is at, or is a fixed facility serving, a transportation hub, and every rental-car shuttle is a conveyance), YD (the airport counter as a workplace), WF (every employee who commuted by bus, rail or ferry).184
Issuers: the President under 8 U.S.C. § 1182(f); the Secretary of Homeland Security under 19 U.S.C. § 1318(b); the Centers for Disease Control and Prevention under 42 U.S.C. §§ 264 and 265. Dates: Proclamations 9984 (China), 9992 (Iran), 10143 (the Schengen Area, the United Kingdom, Ireland, Brazil and South Africa) and 10199 (India) in force on every day until Proclamation 10294 revoked them effective November 8, 2021; the Canadian and Mexican land-border notices of June 23 (to 11:59 p.m. July 21), July 22 (to August 21), August 23 (to September 21) and September 22, 2021 (to October 21), with the October 21, 2021 notices admitting vaccinated non-essential travelers only from November 8, 2021; the Title 42 order of October 13, 2020 to August 1 and its reassessment order of August 2, 2021 thereafter; the inbound-testing order throughout. Operative text: "The entry into the United States, as immigrants or nonimmigrants, of noncitizens who were physically present within the Schengen Area, the United Kingdom ..., the Republic of Ireland, and the Federative Republic of Brazil during the 14-day period preceding their entry or attempted entry into the United States, is hereby suspended"; land-border travel "limited to 'essential travel,'" non-essential travel defined by example as "sightseeing, recreation, gambling, or attending cultural events"; no aircraft passenger introduced from any foreign country without a negative test or documentation of recovery. Status: in force July 1 and September 30. Functions: CR (the international renter at every airport counter; the one-way and cross-border rental at every land port; the Canadian and Mexican traveler who did not arrive), CB, SC (imported equipment, parts and fleet).185
B-3. The Department of Transportation's minimum-service order (Ex. AGY-AVIATION-SURFACE-035)
Issuer: the Secretary of Transportation under CARES Act §§ 4005 and 4114(b), Pub. L. 116-260 § 407 and ARPA § 7301. Dates: issued April 29, 2021; binding from May 14, 2021; through September 30, 2021. Operative text: every carrier taking payroll support required to maintain minimum scheduled air service to the points in its network on the Department's terms. Status: in force July 1 through September 30, 2021, expiring at the end of the quarter's last day. Functions: CR (the network of flights on which every airport counter depends was fixed by federal order on every day of the quarter).186
Executive Order 13991 required a face covering of every person in every federal building throughout the quarter; the Office of Management and Budget's memorandum M-21-25 of June 10, 2021 superseded the twenty-five percent occupancy limit of M-21-15 (Ex. FED-270, January 24, 2021) and required every agency's reentry plan by July 19, 2021 while carrying the face-covering, distancing and visitor rules forward; the Safer Federal Workforce Task Force's Model Safety Principles of July 29, 2021 required face coverings of every person regardless of vaccination status in federal buildings in areas of substantial or high transmission, an attestation of vaccination status from every employee and onsite contractor, disclosure by every visitor and agency-head approval for any federally hosted event of more than fifty participants; the Certification of Vaccination form issued August 6, 2021; Executive Orders 14042 and 14043 of September 9, 2021 required every covered federal contract to carry the Task Force's clause from October 15, 2021 and recited that the public health emergency and the national emergency remained in effect; the Office of Management and Budget's determination of September 24, 2021, published September 28, 2021 (86 Fed. Reg. 53691), found that contractor compliance "will improve economy and efficiency by reducing absenteeism and decreasing labor costs." Every delivery of rented equipment into a federal facility and every federal event ran under those rules. The Occupational Safety and Health Administration's revised National Emphasis Program of July 7, 2021 targeted programmed inspections, and its Healthcare Emergency Temporary Standard governed every hospital and home-health agency to which the industry rents home health equipment and every hospital dock it delivers to, with compliance due July 6 and July 21, 2021. Status: in force in the quarter; the contractor clauses carried no private obligation before October 15, 2021 and are cited as a September 2021 federal statement of the emergency, never as a third-quarter obligation. Functions: EQ, PR, CN (federal and hospital customers), WF.187
Issuer: the Governor under HRS chapter 127A, each proclamation adopted "as rules that shall have the force and effect of law" and enforced as a misdemeanor; the Mayor of Honolulu under Governor-approved emergency orders. Dates and text: the Twenty-First Proclamation (June 7, 2021, to August 6, 2021) kept the indoor face-covering requirement, the trans-Pacific quarantine with test and vaccination exceptions and a hotel Health and Safety Plan mandate; the Emergency Proclamation of August 5, 2021 (to October 4, 2021) continued the face-covering requirement and Safe Travels and imposed vaccination-or-weekly-testing on every State and county employee from August 16; Executive Order 21-05 (August 10, 2021) capped social gatherings at ten indoors and twenty-five outdoors and restaurants, bars and gyms at fifty percent seated capacity, in force by its terms through November 30, 2021 and superseded November 12, 2021, so throughout the quarter; Executive Order 21-06 (September 1, 2021) governed health facilities; Executive Order 21-07 (September 13, 2021) required vaccination or a negative test for entry to State facilities; the Order for Self-Quarantine was served on every arriving passenger not exempted by test or vaccination; Honolulu's Emergency Order 2021-09 (effective July 8) ran under Tier 5, Emergency Order 2021-11 (Safe Access Oahu, effective September 13) conditioned entry to restaurants, bars, gyms and entertainment venues on proof of vaccination or a negative test, and Emergency Order 2021-13 (effective September 22) carried the regime forward. Status: in force July 1 and September 30 (the proclamation chain, the face-covering requirement, Safe Travels); from August 10 (the caps); from September 13 (Safe Access Oahu). Functions: CR (every airport counter in the State served only travelers who had cleared Safe Travels), PR (every event capped at ten indoors and twenty-five outdoors from August 10), CB, WF.188
Issuer: the Kansas Department of Health and Environment under its statutory quarantine authority. Dates and text: the travel and exposure quarantine mandate, in force from March 2020, required home quarantine of unvaccinated travelers from listed States and countries, of cruise passengers and of attendees of gatherings of 500 or more, with the list updated June 3 (Ex. KS-056, the list in force from July 1 to September 23) and September 23, 2021 (Ex. KS-057); the Secretary's order of June 18, 2021 required every adult care home to "continue to screen all staff (each shift), each resident (daily), and all persons entering the facility." Status: in force July 1 and September 30. Functions: CR (every traveler into Kansas from a listed State was ordered into quarantine on arrival), PR (attendees of 500-person gatherings), WF.189
Issuers: the Occupational Safety and Health Standards Board of California; Oregon OSHA; the Virginia Safety and Health Codes Board; the Washington Department of Labor and Industries, Secretary of Health and Governor; the Governor of New Jersey; the New Mexico Department of Health; the New York Legislature and Commissioners of Labor and Health. Dates and text: California's 8 C.C.R. §§ 3205-3205.4, readopted June 17, 2021, applied "to all employees and places of employment" and required a written COVID-19 Prevention Program, exclusion of exposed employees, testing and reporting in every yard, counter and delivery crew in the State, and the State Public Health Officer's order of June 11, 2021 kept face coverings for the unvaccinated and mega-event rules; Oregon's OAR 437-001-0744 (permanent from May 4, 2021, amended June 30, 2021) ran throughout, and Administrative Order 10-2021 of August 13, 2021 renewed its workplace face-covering requirements; Virginia's 16VAC25-220 required exposure assessment, screening, distancing, sanitation, shared-vehicle rules and reporting of every employer in the Commonwealth and was amended September 8, 2021; Washington's Proclamation 20-25.14 (July 1, 2021) and the Washington Ready plan kept face coverings for the unvaccinated and required every employer to verify vaccination status before permitting unmasked work, made enforceable by citation through WAC 296-800-14035 as readopted July 6, August 23 and September 20, 2021, under which "[e]mployers must comply with all conditions for operation required by emergency proclamation"; New Jersey's Executive Order 192 requirements for unvaccinated or unverified employees and its daily health checks bound every in-person worksite through Executive Orders 242 and 243; New Mexico's COVID-Safe Practices bound every business under the orders of June 30 and July 30, 2021; New York's 10 NYCRR Subpart 66-3 (readopted June 23, 2021) required every business to provide face coverings at its own expense and masked every unvaccinated employee and customer to August 27, 2021, when 10 NYCRR 2.60 (Ex. ECO-B-054) and the Commissioner's Determination on Indoor Masking (Ex. NY-073) took its place, and 10 NYCRR 2.61 (Ex. NY-071), filed and effective August 26, 2021, required the vaccination of the personnel of every hospital and nursing home in the State by September 27, 2021; the HERO Act required every private employer to adopt an airborne infectious disease exposure prevention plan by August 5, 2021 under 12 NYCRR Part 840, with civil penalties of "not less than fifty dollars per day for failure to adopt" a plan and "not less than one thousand dollars nor more than ten thousand dollars for failure to abide by an adopted" plan, and the Commissioner of Health's designation of September 6, 2021 activated every plan. Enforcement: citations and civil penalties under each State's occupational-safety act. Status: in force July 1 and September 30. Functions: EQ, YD, OP, HR, WF (every yard, counter, shop, showroom and delivery crew in seven States).190
Each instrument below is one of the workplace infection-prevention and exposure-control requirements the State imposed on every indoor workplace and place of public accommodation; where the instrument placed the duty of enforcement on the business or reached outdoor events, that is stated. Nevada's Directive 047 (July 27, 2021; effective 12:01 a.m. July 30, 2021) required face coverings indoors of every person in every county of substantial or high transmission, which included Clark and Washoe Counties throughout, and Directive 048 (August 4) added schools; Louisiana's Proclamation 137 JBE 2021 (August 2, 2021; effective August 4) required a face covering of every person indoors in every business and workplace open to the public and in every school, renewed by 167 JBE 2021 (August 31) and 181 JBE 2021 (September 28), with citations to businesses that fail to enforce it; Oregon's OAR 333-019-1025 (filed August 11, 2021; effective August 13) provided that "[i]ndividuals, regardless of vaccination status, are required to wear a mask, face covering or face shield except as exempted in section (6) of this rule when in an indoor space," including every indoor workplace, with a civil penalty of $500 a day, and reached crowded outdoor spaces from August 27; New Mexico's order of August 17, 2021 required face coverings in every indoor public space from August 20, alongside the COVID-Safe Practices that bound every business, and extended without interruption by the order of September 15, 2021 (Ex. NM-070); Washington's Secretary of Health Order 20-03.4 (August 19, 2021; effective August 23) required masks indoors of every person regardless of vaccination status, Proclamation 20-25.15 (August 20) barred every business from admitting an unmasked customer, and Order 20-03.5 and Proclamation 20-25.17 (September 13) extended the requirement to outdoor events of 500 or more; Illinois's Executive Order 2021-20 (August 26, 2021; face coverings from August 30) required masks in every indoor public place and workplace and commanded that "[a]ll employers must ensure that employees wear face coverings in indoor workplaces," restated by Executive Order 2021-22 (September 3); the District's Mayor's Order 2021-097 (July 29, 2021; effective 5:00 a.m. July 31) required face coverings indoors of every person over two; Hawaii's statewide face-covering requirement, first imposed by the Fifteenth Proclamation (Ex. HI-016) and carried in the proclamations in force (Ex. HI-023, Ex. HI-024), ran on every day; Connecticut's Executive Order 13A (August 5, 2021) required face coverings of the unvaccinated indoors and authorized municipal universal mandates; California's guidance of July 28, 2021 kept masks for the unvaccinated indoors under the June 11, 2021 order. Each bound the equipment yard, the rental counter, the event warehouse and the showroom as a workplace and a place of public accommodation, Louisiana, Washington and Illinois placed the duty of enforcement on the business or the employer itself, and each bound every indoor event the event renter served. Status: each in force on September 30, 2021. Functions: YD, PR, CN, OP, WF.191
New York City's Emergency Executive Order 225 (August 16, 2021; effective August 17; penalties from September 13) forbade every indoor restaurant, bar, food court, catering hall, gym, fitness studio, movie theater, concert venue, casino, museum, arena, stadium, convention center, exhibition hall, performing-arts theater, bowling alley, arcade, play area, billiard hall and commercial event venue in the five boroughs to admit any patron, employee or contractor without proof of vaccination, with fines of not less than $1,000, $2,000 and $5,000, restated by Emergency Executive Orders 228, 239 and 250; San Francisco's Health Officer required proof of vaccination of every patron of indoor restaurants, bars, gyms and entertainment venues from August 20, 2021 and of their personnel by October 13, restated September 1 and September 15; New Orleans required vaccination or a negative test for entry to every indoor restaurant, bar, gym and venue from 6:00 a.m. on August 16, 2021; Honolulu's Safe Access Oahu did the same from September 13, 2021; Hawaii's Executive Order 21-07 required vaccination or a negative test for entry to State facilities from September 13; Nevada's Directive 049 (August 16, 2021) conditioned mask-free large events on proof of vaccination; King County's Local Health Officer ordered on September 16, 2021 a vaccination-verification condition on indoor restaurants, bars, gyms, theaters, arenas, exhibition halls and convention centers and outdoor events of 500 or more, to take effect October 25, 2021, cited here as a September 2021 order of an appropriate authority and not as a third-quarter obligation. Every indoor event in those cities from those dates could seat, and therefore could order chairs, linens, staging and lighting for, only vaccinated guests. Status: in force from the dates stated through September 30, 2021. Functions: PR, MK, CB.192
The local layer of the quarter consisted of workplace infection-prevention and exposure-control requirements on every indoor business (universal face-covering orders, several enforced against the business by license sanction, misdemeanor or closure), face-covering and screening conditions on entry to courthouses and government buildings, and the emergency continuations under which they issued. Los Angeles County reinstated masks "regardless of vaccination status" in "all indoor public settings and businesses" from 11:59 p.m. July 17, 2021, and the City did the same; the Bay Area health officers ordered every person, "regardless of vaccination status, to wear face coverings when indoors in public settings" from 12:01 a.m. August 3, 2021 and made businesses "required to implement the indoor face covering order"; Sacramento County from July 30; Clark County masked every employee of every business in an indoor public space from July 22 (adopted July 20) under a code provision with license suspension and $1,000-a-day penalties; King County required face coverings in every indoor public space and at every outdoor event of 500 or more from September 7; Boulder County masked every indoor public space from 5:00 p.m. September 3 (Ex. MET-DEN-033); Denver ordered the personnel of hospitals, schools, shelters and their contractors vaccinated by September 30 (Ex. MET-DEN-023); Oak Park required face coverings indoors from August 6 and Chicago from August 20; Dallas County masked every commercial entity from 11:59 p.m. August 11, 2021, "continuing until rescinded," and Bexar County did the same from August 11; Harris County kept its building screening and mask orders and its courthouse orders of August 11 and 17; Philadelphia required masks in every indoor business that did not verify vaccination from August 12 (Ex. MET-PHL-019) and its Board of Health defined "indoor" to include "a tent top" (Ex. MET-PHL-020); Boston required face coverings in every business from 8:00 a.m. August 27; New Orleans required a face covering of every person indoors from July 31, 2021 under the Health Department's mandatory COVID-19 Reopening Guidelines issued under the Mayor's emergency proclamation of May 15, 2020 (Ex. MET-MSY-027); Baltimore City from August 10; Montgomery County, Maryland, from August 7; Atlanta from July 28 to August 19 (Ex. MET-ATL-063) and Savannah, by Emergency Order No. 29 of August 24 (face coverings, a cap of fifty on gatherings on City property, City buildings and community centers closed, Civic Center events cancelled and event permits revoked), to September 23 (Ex. MET-ATL-017); Mecklenburg County ordered every business to require face coverings from August 31 on pain of misdemeanor and closure; St. Louis from July 26, continued by Health Commissioner's Order No. 2 (2021) of August 30 (Ex. MET-STL-022); Kansas City from August 19 and, from September 23, under Ordinance 210853 (Ex. MET-KC-006); Columbus in "every place of business" from September 14; Cuyahoga County's and Hamilton County's orders from August 3 and 11; Marion County's courts from August 16; Louisville's buildings and vehicles from August 2; Memphis's emergency weekly from July 13; Dane County "[i]n any enclosed space open to the public" from August 19; Salt Lake City's buildings and vehicles from July 28; the Maricopa County courts from August 9; the Fifth Judicial District in Pittsburgh from August 10; Minneapolis's emergency to November 7; Orange County's and Hillsborough County's emergencies weekly; Oakland County's schools and day cares from August 24. Status: each in force on the dates stated, and every order issued from July 17 through September 14 in force on September 30, 2021, save Atlanta's as to private businesses from August 19. Functions: YD, PR, CN, OP, WF.193
New Jersey's Executive Order 251 (August 6, 2021; effective August 9), Connecticut's Executive Order 13A (August 5), New York's 10 NYCRR 2.60 (August 27), Rhode Island's Executive Order 21-87 (August 19), Illinois's Executive Order 2021-20 (August 30), Pennsylvania's order of August 31 (effective September 7), Virginia's Order of Public Health Emergency Ten (August 12), Massachusetts's DESE requirement (August 25), Kentucky's Executive Order 2021-585 (August 10 to September 7) and its two emergency regulations (August 12 to September 9), Hawaii's statewide face-covering requirement as applied to every school under the Emergency Proclamation of August 5, 2021 (Ex. HI-024), implemented by the Department of Education from August 3 (Ex. HI-043, cited as the Department's record of that implementation), the District's order of July 31, Louisiana's of August 4, Nevada's of August 4, New Mexico's of August 20, Oregon's of August 2, Washington's of July 30, California's of July 12 and Delaware's of August 16 required face coverings of every student and staff member and quarantined exposed children, reaching the households of the industry's hourly, non-teleworkable workforce; Oakland County's order of August 24 did the same for Detroit's suburbs; Indiana's control measures of July 19, 2021 excluded every positive employee from employment and quarantined unvaccinated close contacts for fourteen days; Arkansas's, Rhode Island's, Delaware's (to July 12) and San Diego County's isolation and quarantine orders removed every diagnosed worker and every unvaccinated close contact from every yard for ten to fourteen days; Tennessee's Executive Order 84 (August 16, 2021) and North Carolina's Session Law 2021-130 § 10 (August 30, 2021) dictated the rules the workforce's schools operated under. Status: in force in the quarter from the dates stated. Functions: WF, HR.194
The disaster and public-health emergencies of thirty-five jurisdictions were in force on July 2, 2021 and of twenty-five on September 21, 2021 (Alabama, Arizona, Arkansas, California, Connecticut, the District of Columbia, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Nevada, New Mexico, North Carolina, Oregon, Rhode Island, Texas, Utah, Washington, West Virginia and Wyoming), with Arkansas re-declaring July 29, Alabama August 13 and New York September 27, 2021; each is the predicate under which the State's health officers, occupational-safety agencies and local governments acted, and each is cited as such and not as a suspending order. Texas's GA-38 (July 29, 2021), Florida's Executive Order 21-175 (July 30), Arizona's Executive Order 2021-18 (August 16), Georgia's Executive Order 08.19.21.03 (August 19) and South Carolina's Proviso 1.108 (July 1) each dictated what rules the industry's employers in those States would operate under by barring or preempting local mandates; they are governmental orders limiting the commerce of the localities and businesses they addressed, and in Texas the county orders they met were litigated through the quarter and remained posted and applied. Georgia's order also imposed from August 19, 2021 a mandatory mitigation duty on every organization operating in person. Montana's House Bill 702, codified at Mont. Code Ann. § 49-2-312 from May 7, 2021, bound every employer in the State on every day of the quarter as to the vaccination status of its employees and customers, a statute and not a declaration (Ex. MT-072). Status: in force in the quarter. Functions: all.195
Massachusetts's remote-notarization statute ran to December 15, 2021; Maryland's Order 21-06-15-01 carried its credential extensions to August 15, 2021; Georgia's Executive Orders 06.30.21.02 and 09.20.21.02 suspended its road-test rules through September 2021; West Virginia's Executive Order 7-20, § 14 (Ex. WV-007), suspended the vehicle-inspection deadlines through September 30, 2021, and Executive Order 23-21, issued July 20, 2021 (Ex. WV-067), fixed the end of that suspension at 12:01 a.m. on October 1, 2021, so that the July 20 order is the record that the suspension ran through the quarter. Oregon's DMV ran appointment-based service through the quarter and the District's DMV was appointment-only to July 19-20, 2021, each under its State's continuing emergency; the agencies' own notices of those regimes (Ex. OR-057, Ex. DC-082) are cited as the record of the regimes and not as orders. California's commercial driver licenses, permits and endorsements expiring between March 2020 and November 30, 2021 ran on extensions the Department granted under the federal motor-carrier regulator's waiver (described by category; the Department's record of the extension is the announcement of September 2, 2021, Ex. AGY-ST-DMV-SOS-RECORDERS-017, cited as context and not as an order). Status: the orders in force in the quarter as dated. Functions: YD, SC, HR.196
C. How the instruments reached the functions
CR. On every day of the quarter every airport counter, consolidated rental car facility and rental-car shuttle in the country operated under the federal face-covering requirement, an airborne-transmission control backed by criminal penalties and enforced by the airport operator under federal directive; the network of flights that delivered the traveler to the counter was fixed by federal order to the quarter's last day; the international traveler was barred at every airport by the entry suspensions of five proclamations and screened by the inbound-testing order, and the Canadian and Mexican traveler was barred at every land port unless essential; every arriving passenger in Hawaii cleared Safe Travels or was served with an Order for Self-Quarantine, and every counter in the State rented only to those who had; every traveler into Kansas from a listed State was ordered into home quarantine on arrival. Congress's appropriation of March 11, 2021 of relief from rent the airport rental counter could not pay, administered by the Federal Aviation Administration through the quarter, is the legislative record of the same fact.
EQ. Every job site in California, Oregon, Virginia, Washington, New Jersey, New Mexico and New York ran under a State workplace standard, and every delivery, service call and pickup ran under its screening, face-covering, distancing and exclusion rules; every job site in the metros under the universal orders named in subpart B-10 ran under a county or city face-covering order, one of the airborne-transmission controls subpart B-10 describes, from dates between July 17 and September 14; every rental to a federal project ran under the Task Force's attestation and visitor rules; MIOSHA's citation of an equipment rental and sales business under its emergency rules, published in May 2021, records how the regulators applied those rules to this industry's class.
PR. Every indoor event in New York City, San Francisco, New Orleans and Honolulu from mid-August and mid-September could seat only vaccinated guests, and the caterer, the planner and the venue that ordered chairs, linens and staging ordered them for the guests the order allowed; every social gathering in Hawaii was capped at ten indoors and twenty-five outdoors from August 10; every indoor event in seven States, the District and the metros under the universal orders named in subpart B-10 ran under a face-covering requirement, the airborne-transmission control subparts B-8 and B-10 describe; Washington required face coverings at every outdoor event of 500 or more from September 13 and King County from September 7; Philadelphia treated a tented event as indoor; Kansas quarantined attendees of 500-person gatherings; the convention centers that reopened did so in July (McCormick Place) and September (Boston, September 3, 2021) under those orders.
CN and YD. Every showroom and counter in seven States, the District and the metros under the universal orders named in subpart B-10 required a face covering of every customer and worker from the dates stated, and in Washington could not lawfully admit an unmasked customer; every showroom and counter in seven States ran under a workplace standard with written plans, screening and exclusion; every New York branch adopted an exposure-prevention plan by August 5 and activated it September 6; the motor-vehicle offices of Oregon and the District ran by appointment and California's commercial credentials ran on extension because the offices could not renew them.
OP and HR. The reservation, dispatch and billing offices were workplaces under the same standards, face-covering orders and plans; commercial-driver credentials ran on extensions in California; every hire into a masked or plan-governed workplace onboarded under its rules.
WF. The workforce's children were subject to face-covering and quarantine orders in at least eighteen States and the District from dates between July 12 and September 7; every diagnosed worker and every unvaccinated close contact was removed from the yard for ten to fourteen days in Indiana, Arkansas, Rhode Island, San Diego County and the other jurisdictions with standing quarantine orders; every commuting worker rode every bus and train under the federal conveyance order's airborne-transmission control.
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.197 Tri-State holds that a suspension includes a "delay" and that causation is but-for; the Notice recognizes both propositions in Q&A-22 (an employer suspended for part of a quarter is eligible for the whole quarter) and Q&A-16(4) (a "significant delay ... in moving operations" is itself "a partial suspension during that transition period," the two-week figure being offered "for example").198
The arithmetic for this industry
What the orders compelled this industry to dismantle is recorded in the orders themselves and in the industry's own filings, and the orders' step dates fix how long the restoration took. The vehicle renter whose utilization fell "to 28% from 82%" in the second quarter of 2020 because "shelter-in-place and similar orders and travel restrictions" removed the traveler sold its fleet down through the motor-vehicle offices as they reopened by appointment in May, June and July 2020, and bought fleet back on the manufacturers' schedules as the plants that Michigan's orders had closed from March 24 to May 7, 2020 resumed and then, in 2021, on the schedules the semiconductor shortage permitted, a shortage the federal government traced to "a six-week industry shutdown" and was still documenting on September 24, 2021; a fleet sized in the summer of 2020 to a traveler base confined by forty-two stay-at-home orders, eighteen quarantines and Utah's travel declaration was the fleet on the lot on July 1, 2021, and the traveler it served that day was still barred at every land border and every foreign airport, still under the federal conveyance order at every counter, and still quarantined in Hawaii and Kansas.199 The equipment renter whose customers were closed by order in Pennsylvania, New York, New Jersey, Michigan, Washington, Vermont, Boston and the Bay Area in the spring of 2020 saw those customers restart under conditions that fixed crew sizes and hours (Vermont in crews of two, five and ten; Washington under phase requirements; New York under guidance that ran to June 25, 2021; New Jersey under Executive Order 192 from November 5, 2020 and its successors through the third quarter of 2021), and the project that a March 2020 shutdown delayed by six weeks was a project that reached its equipment-intensive phases six weeks later in every subsequent quarter. The event renter's market was prohibited in March 2020, capped at ten to fifty through the summer, prohibited or capped at ten again in some twenty States from November 2020, and released only between April 16 and June 30, 2021, with New Mexico on July 1, Rhode Island on July 6 and Hawaii never; a wedding season is booked months ahead, so the July 2021 calendar was built in the winter and spring of 2021 under caps of ten, twenty-five and fifty, and the events that could be booked under those caps were the events on the July calendar; the tents, tables and staging released from storage in June 2021 met, from July 17 onward, face-covering and exposure-control orders on every indoor event in seven States and the District and the metros, and from August 16 vaccination-proof conditions in New York City, New Orleans, San Francisco and Honolulu. The consumer-rental showroom closed in March 2020 in some forty States, reopened at twenty-five to fifty percent in May and June 2020, fell to twenty-five percent or closed again in the winter, and reached one hundred percent between March 12 and June 30, 2021, then, from July 17, again required, as an airborne-transmission control on every indoor business, a face covering of every customer in seven States, the District and the metros. The motor-vehicle transaction that titled and plated the fleet ran on appointment schedules and extended credentials from March 2020 through the quarter in Oregon, the District and California. An employer whose operation was ordered suspended through June 30 was not operating in its ordinary course on July 1, and the orders' own step dates fix the arithmetic. The Bureau of Labor Statistics recorded the result: industry employment in July 2021 stood 15.2 percent below July 2019, and in September 2021 15.4 percent below February 2020.200
The instruments still in force
When the last State capacity orders lifted on June 30, 2021, the instruments of subpart B remained: the conveyance order and its directives; the entry proclamations, the land-border limitation, the Title 42 order and the inbound-testing order; the Department of Transportation's order; the federal workplace and site-access rules; Hawaii's proclamation chain, Safe Travels and Order for Self-Quarantine; Kansas's quarantine; the workplace standards of seven States; the sector orders issued under the continuing emergencies of thirty-five jurisdictions; the quarantine and isolation orders; the motor-vehicle credential extensions and suspensions; and then, from July 17, the reinstatements, from August 10 Hawaii's caps, from August 16 the vaccination-proof conditions, and from September 6 New York's activated plans. They are not the residue of a suspension; they are orders limiting commerce, travel and group meetings in force during the calendar quarter, and the ecosystem section below states the pathways by which each reached the operation.
E. The Service's grounds for the quarter, answered
"No orders in effect." Subpart B lists them. The conveyance order, the security directives, the entry proclamations, the land-border notices, the Title 42 and inbound-testing orders, the Department of Transportation's order, the Healthcare ETS, the Task Force's rules, Hawaii's proclamations and quarantine, Kansas's quarantine, the workplace standards of seven States were in force July 1, under the thirty-five emergencies from which the States' health officers and agencies drew their power; the face-covering reinstatements of seven States and the District and of the metros named in subpart B, with the exposure-control duties they carried, Hawaii's caps, the vaccination-proof orders of four cities and New York's activated plans were in force September 30. It is factually incorrect.
"Essential and open." The word is not in the statute, and the Notice's own words make an employer designated essential eligible where "more than a nominal portion of its business operations are suspended by a governmental order" and where a modification required by order "has more than a nominal effect."201 An airport counter under the federal conveyance order enforced by the airport operator, serving a network fixed by federal order, in a State that quarantined every arrival, was operating under orders that fixed how it could operate; a yard under a written prevention program, an exclusion rule and a county face-covering order was the same.
"Nominal effect." The Notice's own list of compelled modifications includes "requiring employees and customers to wear face coverings" and "limiting occupancy to provide for social distancing," and the United States told the District Court that "employees having to wear face masks may impact business operations."202 A cap of ten on every indoor gathering in Hawaii, a vaccination-proof condition on every indoor event in New York City, the federal face-covering requirement at every airport counter, a bar on admitting an unmasked customer in Washington and the exclusion of every exposed worker for ten to fourteen days are modifications of the operation, and Tri-State held that "the required protocols and procedures to comply with the Proclamation" are the suspension the order caused.203
"The employer was not the addressee." The conveyance order addressed the airport operator and the traveler; the border notice addressed the traveler; the vaccination-proof order addressed the venue; the school order addressed the school. The United States has represented that "a business may be suspended 'due to' a government order addressing a third party," and the statute says nothing of the addressee.204
"Guidance, not orders." Every instrument in subpart B is an order, proclamation, rule, statute or directive with a sanction. A federal order whose violation is enforceable under 42 U.S.C. § 271 and 18 U.S.C. § 3559 (Ex. FED-020), a proclamation adopted "as rules that shall have the force and effect of law" and enforced as a misdemeanor (Ex. HI-024), a rule filed in the Oregon Administrative Rules with a $500-a-day penalty (Ex. OR-048), a New York statute with penalties to $20,000 (Ex. NY-082), a county ordinance suspending business licenses (Ex. MET-LAS-026), a mayoral order with fines of $1,000 to $5,000 (Ex. MET-NYC-017) and a board-of-health rule enforceable by misdemeanor and closure (Ex. MET-CLT-001) are not recommendations. The announcements and program pages of the period (the Federal Aviation Administration's concessions-relief pages, the motor-vehicle agencies' service notices, the convention authorities' releases) are described in this analysis as records of the actions they report and ground no finding as orders.205
F. The finding
During the calendar quarter beginning July 1, 2021 and ending September 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the federal conveyance and transportation-hub order and its security directives, the entry proclamations, the land-border notices of June 23, July 22, August 23 and September 22, 2021, the Title 42 and inbound-testing orders, the Department of Transportation's minimum-service order, the federal workplace, site-access and emphasis-program instruments and the Healthcare ETS, Hawaii's proclamations of June 7 and August 5, 2021, its Order for Self-Quarantine, its Executive Orders 21-05, 21-06 and 21-07 and Honolulu's Emergency Orders 2021-09, 2021-11 and 2021-13, Kansas's travel and exposure quarantine mandate, the workplace standards of California, Oregon, Virginia, Washington, New Jersey, New Mexico and New York and New York's HERO Act plans and their activation, the indoor face-covering orders, with the exposure-control duties they carried, of Nevada, Louisiana, Oregon, New Mexico, Washington, Illinois, Hawaii and the District of Columbia and of Connecticut and California as to the unvaccinated, the universal indoor face-covering orders binding every business in Los Angeles County and the City of Los Angeles, the Bay Area counties and Berkeley, Sacramento County, Clark County (every employee), King County, Boulder County, Oak Park and Chicago, Dallas County, Bexar County, Philadelphia, Boston, New Orleans, Baltimore City, Montgomery County, Atlanta (to August 19) and Savannah, Mecklenburg County, St. Louis, Kansas City, Columbus and Dane County, the face-covering and screening orders governing the courthouses and government buildings of Harris County, Cuyahoga County, Hamilton County, Marion County, Maricopa County, Allegheny County, Clark County (the Eighth Judicial District Court), Louisville Metro and Salt Lake City, through which this industry's title, lien, licensing and court transactions ran, Denver's personnel-vaccination order and Oakland County's school and day-care order, and the emergency continuations of Memphis, Minneapolis, Orange County and Hillsborough County, cited as the predicate of the local orders issued under them and not as suspending orders, the vaccination-proof conditions of entry in New York City, San Francisco, New Orleans and Honolulu, the school, child-care and quarantine orders of at least eighteen States and the District and the school-rule orders of Tennessee and North Carolina, the motor-vehicle credential extensions and road-test and inspection suspensions of Massachusetts, Maryland, Georgia and West Virginia and California's commercial-credential extension, and the preemption and mitigation orders of Texas, Florida, Arizona, Georgia and South Carolina and Montana's vaccination-status statute (Ex. FED-020, Ex. FED-051, Ex. FED-052, Ex. FED-054 (as continued by SD 1542-21-01A and SD 1542-21-01B), Ex. FED-056, Ex. FED-061, Ex. FED-200, Ex. FED-201, Ex. FED-207, Ex. FED-208, Ex. FED-232, Ex. FED-233, Ex. FED-234, Ex. FED-235, Ex. FED-255, Ex. FED-256, Ex. FED-257, Ex. FED-258, Ex. FED-037, Ex. FED-038, Ex. FED-042, Ex. AGY-AVIATION-SURFACE-035, Ex. FED-060, Ex. FED-271, Ex. FED-272, Ex. FED-278, Ex. FED-083, Ex. FED-080, Ex. HI-023, Ex. HI-024, Ex. HI-025, Ex. HI-026, Ex. HI-027, Ex. HI-031, Ex. MET-HNL-032, Ex. MET-HNL-035, Ex. MET-HNL-037, Ex. KS-056, Ex. KS-057, Ex. KS-052, Ex. CA-024, Ex. CA-067, Ex. CA-029, Ex. OR-041, Ex. OR-044, Ex. OR-049, Ex. VA-037, Ex. VA-038, Ex. WA-067, Ex. WA-070, Ex. WA-072, Ex. WA-101, Ex. AGY-ST-LABOR-WORKPLACE-054, Ex. AGY-ST-LABOR-WORKPLACE-055, Ex. NJ-050, Ex. NJ-051, Ex. NM-060, Ex. NM-062, Ex. NY-133, Ex. NY-082, Ex. NY-136, Ex. NY-127, Ex. NY-071, Ex. NY-073, Ex. NV-041, Ex. NV-042, Ex. NV-043, Ex. LA-036, Ex. LA-038, Ex. LA-040, Ex. OR-048, Ex. NM-067, Ex. NM-070, Ex. WA-078, Ex. WA-080, Ex. WA-084, Ex. WA-085, Ex. IL-042, Ex. IL-043, Ex. DC-057, Ex. CT-050, Ex. MET-NYC-017, Ex. MET-NYC-018, Ex. MET-NYC-019, Ex. MET-NYC-021, Ex. MET-SFO-011, Ex. MET-SFO-050, Ex. MET-MSY-029, Ex. MET-LA-045, Ex. MET-LA-018, Ex. MET-LA-019, Ex. MET-LA-035, Ex. MET-LA-036, Ex. MET-SFO-010, Ex. MET-SFO-017, Ex. MET-SFO-071, Ex. MET-SAC-015, Ex. MET-LAS-006, Ex. MET-LAS-019, Ex. MET-LAS-026, Ex. MET-SEA-002, Ex. MET-DEN-033, Ex. MET-DEN-023, Ex. MET-CHI-049, Ex. MET-CHI-026, Ex. MET-DFW-028, Ex. MET-SAT-067, Ex. MET-HOU-037, Ex. MET-HOU-052, Ex. MET-PHL-019, Ex. MET-PHL-020, Ex. MET-PHL-071, Ex. MET-BOS-013, Ex. MET-MSY-027, Ex. MET-BAL-017, Ex. MET-DCM-023, Ex. MET-ATL-063, Ex. MET-ATL-017, Ex. MET-CLT-001, Ex. MET-STL-021, Ex. MET-STL-022, Ex. MET-KC-002, Ex. MET-KC-006, Ex. MET-CMH-050, Ex. MET-CLE-009, Ex. MET-CIN-007, Ex. MET-IND-054, Ex. MET-SDF-017, Ex. MET-BNA-058, Ex. MET-MKE-023, Ex. MET-SLC-029, Ex. MET-PHX-016, Ex. MET-PIT-036, Ex. MET-MSP-018, Ex. MET-ORL-013, Ex. MET-TPA-015, Ex. MET-DET-013, Ex. NJ-055, Ex. ECO-B-029, Ex. ECO-B-036, Ex. ECO-B-054, Ex. ECO-B-066, Ex. ECO-B-080, Ex. PA-042, Ex. ECO-B-087, Ex. AGY-ST-EDUCATION-HIGHER-ED-029, Ex. MA-071, Ex. KY-052, Ex. KY-053, Ex. HI-043, Ex. IN-092, Ex. AR-073, Ex. RI-036, Ex. RI-059, Ex. DE-038, Ex. MET-SAN-022, Ex. MET-SAN-024, Ex. NC-032, Ex. TN-036, Ex. AGY-ST-DMV-SOS-RECORDERS-040, Ex. MD-031, Ex. GA-061, Ex. GA-042, Ex. WV-007, Ex. WV-067 (issued July 20, 2021; operative Oct. 1, 2021), Ex. TX-036, Ex. CO-041, Ex. CO-091, Ex. GA-043, Ex. FL-063, Ex. AZ-045, Ex. SC-045, Ex. MT-072), each issued or continued under the disaster and public-health emergencies of thirty-five jurisdictions in force on July 2, 2021 and of twenty-five on September 21, 2021 (Ex. LAW-246, Ex. LAW-247; the continuing declarations and the statutes that carried them, Ex. CA-027, Ex. OR-043, Ex. IL-037, Ex. LA-034, Ex. LA-035, Ex. NM-063, Ex. TX-038, Ex. CT-046, Ex. NJ-052, Ex. NJ-053, Ex. GA-041, Ex. KY-049, Ex. TN-033, Ex. TN-035, Ex. MO-020, Ex. AL-052, Ex. AR-017, Ex. DC-021, Ex. NY-070), caused a temporary delay, interruption and, as to the barred traveler, the unvaccinated event guest, the excluded worker and the unmasked customer in Washington, termination of a portion of the operations of employers in the rental and leasing industry, and that portion was more than nominal under any measure, including the United States' own safe harbor. The operation of the trade or business of employers in this industry was partially suspended during the calendar quarter due to those orders. The Oregon and District agencies' notices of their appointment-only regimes (Ex. OR-057, Ex. DC-082), the California Department of Motor Vehicles' release of September 2, 2021 (Ex. AGY-ST-DMV-SOS-RECORDERS-017), California's face-covering guidance of July 28, 2021 (Ex. CA-035) and DC Health's guidance of July 30, 2021 (Ex. DC-077) are the records of the orders they implement (Ex. CA-029, Ex. DC-057) and are cited as such, not as orders.
What this analysis does not claim was in force
The proof for this quarter rests on the federal, State, metro, sector, counterparty and workforce instruments listed in subpart B. It rests on none of the following, each of which had expired before July 1, 2021, expired inside the quarter on the date stated and is relied on only to that date, or took effect after September 30, 2021: the stay-at-home and non-essential-business closure orders of 2020 (Ex. IL-005, Ex. OH-011, Ex. CA-007, Ex. WA-016, Ex. NJ-004, Ex. NY-002, Ex. PA-002, Ex. MI-017, Ex. CO-012, Ex. HI-004, Ex. MT-009, Ex. AL-013, Ex. TX-008, Ex. FL-010, Ex. GA-010 and their counterparts); the construction shutdowns of 2020 (the last, New Jersey's, ended May 18, 2020) (Ex. SEC-09-002, Ex. SEC-09-007, Ex. NY-015, Ex. SEC-09-031, Ex. SEC-09-004, Ex. SEC-09-030, Ex. SEC-09-024, Ex. MET-SFO-002, Ex. MET-SFO-047, Ex. AK-013); the non-essential retail closures and curbside rules (the last statewide, New Mexico's, ended December 1, 2020; California's regional order January 25, 2021) (Ex. NM-039, Ex. NM-040, Ex. CA-020); the statewide numeric gathering caps outside Hawaii (the last, New Mexico's and Washington's, ended June 30, 2021; Rhode Island's May 21, 2021) (Ex. NM-057, Ex. WA-065, Ex. RI-043, Ex. RI-044); the statewide traveler quarantines other than Hawaii's and Kansas's (New York's April 1, 2021; Connecticut's March 19, 2021; Massachusetts's March 22, 2021; Pennsylvania's March 1, 2021; New Mexico's February 10, 2021; Alaska's February 14, 2021; Maine's May 1, 2021; New Hampshire's May 7, 2021; Vermont's June 14, 2021; Rhode Island's July 6, 2021, so that its Executive Orders 21-68 and 21-69 were in force from July 1 to July 6 only) (Ex. NY-006, Ex. CT-023, Ex. CT-037, Ex. MA-025, Ex. MA-045, Ex. PA-021, Ex. PA-032, Ex. NM-024, Ex. NM-051, Ex. AK-035, Ex. ME-026, Ex. ME-053, Ex. NH-038, Ex. VT-098, Ex. RI-043, Ex. RI-044, Ex. RI-047); Kauai's Rule 15 (repealed April 5, 2021) (Ex. MET-HNL-095); the paid-leave mandate (December 31, 2020) (Ex. FED-170, Ex. FED-171); the Michigan MIOSHA emergency rules (June 22, 2021) (Ex. MI-054, Ex. MI-076); the Office of Management and Budget's twenty-five percent federal occupancy limit of January 24, 2021, superseded June 10, 2021 (Ex. FED-270); Pennsylvania's mitigation and telework orders (May 31, 2021) (Ex. PA-022, Ex. PA-035, Ex. PA-036); New York's Interim Guidance for Construction as a mandatory document (June 25, 2021) (Ex. SEC-09-017, Ex. NY-105) and its Executive Order 202 and 205 series (June 25, 2021) (Ex. NY-049); the District's DMV appointment regime after July 19-20, 2021 (Ex. DC-082); Delaware's Twenty-Ninth Modification after July 13, 2021 (Ex. DE-038); Maryland's credential extensions after August 15, 2021 (Ex. MD-031); Atlanta's face-covering order as enforceable against private businesses after August 19, 2021 (Ex. MET-ATL-063, Ex. GA-043); the CDC eviction moratoria after July 31 and August 26, 2021 (Ex. FED-025, Ex. FED-026); King County's vaccination-verification condition, effective October 25, 2021 (Ex. MET-SEA-001); the vaccination-proof compliance dates that fell after the quarter (San Francisco's personnel deadline of October 13, 2021 (Ex. MET-SFO-011); Los Angeles County's and the City's orders effective October 7, 2021); Executive Order 14042's contractor clauses from October 15, 2021 and its December 8, 2021 deadline (Ex. FED-063); the Occupational Safety and Health Administration's vaccination-or-testing standard of November 5, 2021; Hawaii's Delta Response Proclamation of October 1, 2021 as an instrument in force (Ex. HI-029, cited only for its Exhibit F restatement of Executive Order 21-05); the land borders' opening to vaccinated travelers on November 8, 2021 (Ex. FED-236) and Proclamation 10294, which revoked the entry suspensions from that date (Ex. FED-209); and the Federal Aviation Administration's grant lists of September 20, 2024 as anything other than the record of the relief paid (Ex. SEC-22-004, Ex. SEC-22-005). Every instrument on which the finding rests is dated in subpart B and in the State, metro and quarter tables on this page.
The quarter the Service's letters most often dispute. The record shows these instruments in force on this industry's functions between July 1 and September 30, 2021; an order in force on any day of the quarter is an order in force during it, and the State, metropolitan and federal layers on the quarter page add to the list.