Veterinary and Animal Services

The six quarters

In each of the six claimable quarters, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19 caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in veterinary and animal services throughout the United States. This section states, for each quarter, the orders in force on the quarter's first and last day, how they reached the functions, and the determination in Tri-State's terms.¹²³ The third quarter of 2021 is written as a self-contained section. Where a determination names the federal prescribing regime, the orders are the DEA exceptions and the State licensing instruments; FDA's Guidance for Industry #269 (Ex. SEC-26-001) is guidance by its own legend and is cited throughout as the dated federal record of the compelled substitute, never as an order.

The second quarter of 2020

On April 1, 2020 the following were in force. Federal: the FFCRA leave mandate (operational that day); the Defense Production Act delegations of March 18, 23 and 27; the scarce-materials designation of March 25; the land-border prohibition from 11:59 p.m. March 20; the entry proclamations for China, Iran, the Schengen Area, the United Kingdom and Ireland; the State Department's suspension of routine visa services; the DEA exceptions of March 16, 20 and 25; FDA's Guidance for Industry #269 of March 24 (guidance by its own legend, the record of the compelled substitute); and, from April 7, the FEMA allocation rule.¹²⁴ State elective-procedure orders on veterinary work: Colorado (from March 23), Minnesota (from 5:00 p.m. March 23), Oregon (from March 23), Indiana (from April 1), Utah (from 12:01 a.m. March 25) and, from 5:00 p.m. April 2, Michigan's Executive Order 2020-34.¹²⁵ PPE orders on veterinary facilities: Minnesota's inventory order (due March 25), New Jersey's inventory and reporting order (due 5:00 p.m. March 27), Oregon's surrender order (by March 27), Colorado's conservation clause and Michigan's minimization clause.¹²⁶ Stay-at-home orders confining the customer base to enumerated purposes in more than forty States, of which at least twenty named veterinary care as an essential purpose and Michigan confined veterinary travel to un-postponed services.¹²⁷ Grooming closures as personal services or as businesses outside the essential designations in Maine, Minnesota, Colorado, Massachusetts, Kentucky, Oklahoma, West Virginia, Hawaii, Illinois, Michigan, New Jersey and the City of Los Angeles, with grooming permitted only for animal health in New York and Dallas County and only by mobile unit in Honolulu.¹²⁸ The telemedicine and VCPR waivers of Florida (March 27), Pennsylvania (March 18) and Colorado (April 1), joined during the quarter by Maine (April 6), Hawaii (April 25) and California (June 4), and by Kentucky's Board of Veterinary Examiners' COVID-19 Order of April 16, 2020 (Ex. KY-046; Ex. KY-056).¹²⁹ School closures in every State; emergency-only child care in most.¹³⁰ On June 30, 2020: the suspensions had ended (Colorado April 26, Indiana April 26, Oregon May 1, Minnesota May 10, Michigan May 28) and Colorado, Minnesota and Oregon had replaced them with recommencement orders conditioning every elective procedure on PPE adequacy, distancing, screening, written plans and owner consent; Michigan's veterinary offices were subject to the workplace safety rules of Executive Order 2020-91 under Executive Order 2020-96 and Executive Order 2020-110 required that "[a]ny work that is capable of being performed remotely ... must be performed remotely"; grooming had reopened under appointment, curbside or capacity conditions (Oklahoma April 24; Indiana April 6 in limited form; Illinois, Maine and Colorado May 1; West Virginia and Minnesota May 4; Hawaii May 5; Kentucky May 11 under the pet-care requirements; Anne Arundel County May 15 by appointment at fifty percent; Massachusetts May 25; Michigan June 15; King County June 19 at fifty percent; New Jersey June 22); California's State Public Health Officer required face coverings at "veterinary clinic[s]" from June 18, one of the airborne-transmission controls the State placed on every health-care setting, and its Department of Consumer Affairs had waived the in-person examination from June 4; Hawaii's § 471-10 suspension, Maine's Executive Order 35 and Colorado's D 2020 020 § G stood; face-covering requirements, airborne-transmission controls on every indoor premises, bound the public in twenty States and employees in twenty more; and the federal layer stood unchanged.¹³¹

CL: suspended in terms in six States for five to eight weeks and conditioned on PPE adequacy, screening and consent thereafter in Colorado, Minnesota and Oregon; performed curbside everywhere under the stay-at-home orders; converted to telemedicine "to the fullest extent possible" in Michigan. EM: the only line permitted under the suspensions, under the orders' own definitions of essential care. BD: essential where named; demand removed by the travel and telework orders; daycare confined to essential workers' pets in Dallas County. GR: closed in at least fourteen States and reopened by appointment, curbside or capacity condition; training classes prohibited under gathering caps of ten or fewer. SH: intake and adoption under the gathering caps; volunteers under stay-at-home. RT: pet stores essential; controlled substances under the DEA exceptions; extralabel prescribing under GFI #269; customers shifted online. SC: PPE inventoried, surrendered, minimized and conserved by State order; bought in a market under federal allocation and export detention. HR: the in-person examination waived in six States, Kentucky's Board of Veterinary Examiners Order of April 16, 2020 (Ex. KY-046; Ex. KY-056) in force, and the federal VCPR unenforced; Tennessee's inspections suspended; Maine's emergency licenses. OP: telework mandates in the closure States; the front desk moved to the parking lot. WF: schools closed in every State; emergency-only child care; the FFCRA mandate; staff carrying travel letters under the stay-at-home orders. CB: owners confined to enumerated purposes; in Michigan to un-postponed veterinary services.

The third quarter of 2020

On July 1, 2020: the recommencement orders of Colorado (PHO 20-29 § V, amended monthly), Minnesota (EO 20-51) and Oregon (EO 20-22); Pennsylvania's Order Requiring Universal Face Coverings, effective that day, the companion of the Worker Safety Order's screening and occupancy rules, requiring face coverings when "obtaining services from the healthcare sector in settings including ... veterinary clinic"; Kansas's Executive Order 20-52 from 12:01 a.m. July 3 with the same words, and the Sedgwick County and Wichita orders that followed it; Virginia's Emergency Temporary Standard from July 27, classifying "veterinary settings" for mandatory duties; California's State Public Health Officer face-covering requirement of June 18, 2020, issued under the title "Guidance for the Use of Face Coverings" and mandatory in terms ("People in California must wear face coverings"), naming veterinary clinics, and its DCA telemedicine waiver as extended by DCA-20-59 and DCA-20-81; Hawaii's § 471-10 suspension in the Ninth and successor proclamations; Maine's Executive Order 35 and its telework mandate "until further notice"; Michigan's Executive Order 2020-110 remote-work mandate, the face-covering requirement carried by Executive Order 2020-110 and, from July 10, 2020, by Executive Order 2020-147, continued by Executive Order 2020-153 (Ex. MI-031; Ex. MI-039), and the workplace rules to which veterinary offices were subject; Kentucky's Healthy at Work pet-care requirements (pets "curbside, in a crate, or in an entry room"), offices at fifty percent and face coverings from July 10; the personal-services conditions on grooming in every reopening State (appointment-only, capacity, face coverings); the FFCRA mandate; the FEMA export rule as extended on August 10; the land-border prohibition renewed July 22, August 21 and September 23; the entry proclamations; and, from September 4, the CDC eviction moratorium.¹³² Statewide face-covering mandates, workplace infection-prevention and exposure-control requirements that bound every veterinary, grooming and boarding premises as a public indoor space, stood in more than thirty States by August, with a business enforcement duty in Minnesota ($25,000 per occurrence), Colorado (no service to the unmasked), Washington ("no mask, no service" from July 7), Louisiana (citations to businesses that fail to enforce) and Texas ("inside a commercial entity" from July 3).¹³³ On September 30, 2020 every instrument named in this paragraph remained in force other than the original Pennsylvania order (superseded November 18 by the Updated Order with the same words) and the Kentucky pet-care requirements' successive versions, and the school orders of the 2020-21 year had placed the workforce's children in remote or hybrid instruction under mandatory State standards in New Jersey, New York, Michigan, California and the other closure States.¹³⁴

CL and EM: every elective procedure in Colorado, Minnesota and Oregon conditioned on a written plan, PPE adequacy, screening and consent; every customer entering a veterinary clinic in Pennsylvania, Kansas, California and Delaware masked by name under those States' exposure-control orders; every Virginia veterinary setting under mandatory exposure assessment, distancing, face coverings and exclusion of infected employees; waiting rooms closed and curbside operation continued under the face-covering and distancing orders of every State. GR: appointment-only, capacity and face-covering conditions on every grooming room; Kentucky's crate-and-curbside rule. BD: demand fixed by the travel and telework orders; Kentucky's boarding requirements. SH: adoption events under gathering caps of ten to fifty. RT: face coverings at the counter; DEA and FDA regimes. SC: the FEMA rule and scarce-materials designation. OP: telework mandates continuing in Maine, Michigan, New Jersey, New York, Pennsylvania and the others. WF: FFCRA; schools remote or hybrid by order. CB: owners under face-covering and gathering orders; traveler quarantines in New York, Hawaii, Alaska, Kansas, Pennsylvania, Chicago and others.¹³⁵

The fourth quarter of 2020

On October 1, 2020 the same recommencement, workplace, telemedicine and face-covering regimes, the exposure controls on the clinic's premises, stood. Inside the quarter the winter re-tightening reached the industry directly: the MIOSHA Emergency Rules of October 14, 2020 required "outpatient health-care facilities, clinics, primary care physician offices, dental offices, and veterinary clinics" to post signs, screen patients and limit waiting rooms and prohibited in-person work "to the extent that their work activities can feasibly be completed remotely"; the MDHHS Gatherings and Face Mask Order of October 29, 2020 limited gatherings in the waiting rooms of "veterinary clinics"; Oregon OSHA's temporary rule of November 6, effective November 16, carried Appendix A-10, "Veterinary Care," mandatory for "veterinarians licensed under ORS 686, and to their assistants and other employees"; Pennsylvania's Updated Order of November 17, effective November 18, kept "veterinary clinic" and its order of November 23, effective November 27, made telework mandatory ("Unless impossible, all businesses must conduct their operations remotely"); Colorado's Second Amended Public Health Order 20-36 placed the Front Range in Level Red from 5:00 p.m. November 20, confined Limited Healthcare Settings "ordered by a medical, dental or veterinary practitioner" to PHO 20-29's regime at ten percent occupancy, cut personal services including dog grooming to twenty-five percent, cut offices to ten percent and prohibited personal gatherings; New Mexico's Amended Public Health Emergency Order of November 18 provided that "[a]nimal grooming services cannot operate under any circumstances" from November 19 to December 2; California's Regional Stay at Home Order of December 3 made grooming a "limited service" in Los Angeles and Long Beach from December 6 and offices remote, and Cal/OSHA's section 3205 bound every California veterinary employer from November 30; California's DCA extended the veterinary waiver on December 15 to February 28, 2021; Iowa, North Dakota, Kansas (statewide without opt-out), Utah, Montana, Wyoming, Hawaii and New Hampshire imposed or made statewide their face-covering mandates, the airborne-transmission control each placed on every indoor public space; and every State's gathering caps fell to ten or a household.¹³⁶ The FFCRA mandate ran to December 31, 2020; the FEMA export rule was extended December 31 to June 30, 2021; the land-border prohibition was renewed October 22, November 23 and December 22; the CDC eviction moratorium was extended by statute to January 31, 2021.¹³⁷ On December 31, 2020 every winter instrument named above was in force.

CL and EM: Michigan's veterinary clinics under posted-sign, screening and waiting-room rules and a remote-work prohibition; Oregon's under Appendix A-10; Colorado's at ten percent under PHO 20-29's regime; Virginia's under the ETS; California's under section 3205; face coverings by name, as exposure controls on the clinic's premises, in Pennsylvania, Kansas, California, Delaware and Michigan. GR: closed in New Mexico for two weeks; at twenty-five percent in Colorado's Red and Orange counties; a "limited service" in Los Angeles and Long Beach; appointment-only elsewhere. BD: demand under the winter travel quarantines and the holiday gathering bans. SH: adoption events prohibited where gatherings were prohibited. OP: telework mandatory in Pennsylvania, Michigan, Colorado (ten percent), California, Washington, Oregon and Kentucky. WF: schools remote in the re-tightening States; FFCRA to December 31. CB: owners under curfews, gathering bans and stay-at-home advisories.¹³⁸

The first quarter of 2021

On January 1, 2021 every winter instrument of the fourth quarter stood; every State that had re-tightened in the autumn of 2020 was under a statewide instrument at least as restrictive as its June 30, 2020 regime, Iowa, North Dakota, Kansas, Utah, Montana, Wyoming, Hawaii and New Hampshire were under statewide face-covering mandates, airborne-transmission controls on every indoor public space, where none had stood on June 30, 2020, and the States whose statewide business rules had ended in 2020 carried the quarter through the face-covering, emergency, county and municipal instruments the State table on this page lists. Inside the quarter: Virginia's Department of Labor and Industry made 16VAC25-220 permanent effective January 27, 2021, classifying "veterinary settings" for mandatory duties; Brookings, South Dakota required face coverings from February 9, 2021 when obtaining services at a "veterinary clinic," one of the airborne-transmission controls the city placed on its health-care settings; the CDC conveyance mask order and the TSA directives bound every transit commute from February 1; Executive Order 13991 and OMB M-21-15 fixed the federal workplace; Proclamation 10143 continued the entry suspensions and added South Africa; the inbound-testing order took effect January 26; California's DCA extended the veterinary waiver by DCA-21-126 on February 26 (recited in the title of DCA-21-173, Ex. AGY-ST-HEALTH-BOARDS-040) and, by DCA-21-137 on March 30, ordered that veterinarians were authorized to order and administer COVID-19 vaccines; the Secretary of Health and Human Services drew veterinarians and veterinary students into the vaccination workforce effective March 11; Kentucky's General Assembly ratified the Board of Veterinary Examiners Order on March 30; and Congress re-enacted the Suspension Clause for the third and fourth quarters of 2021 on March 11.¹³⁹ The step-down was partial and late: Michigan's MIOSHA rules and MDHHS orders ran on; Colorado's Dial 2.0 and 3.0 carried capacity caps to April 16; Minnesota's EO 20-51 and telework mandate ran to May 27 and April 14; Oregon's county tier framework ran to June 29; Kansas's face-covering order was revoked March 31 and Texas's on March 10; Pennsylvania's telework mandate ran to April 3 and its face-covering order naming veterinary clinics to June 28.¹⁴⁰ On March 31, 2021 every State in the Northeast still had capacity, gathering or face-covering orders in force, nine Western States kept their general business restrictions, and the industry-specific instruments of Colorado, Minnesota, Oregon, Michigan, Virginia, California, Pennsylvania, Kentucky, Maine and Hawaii were all in force.

CL and EM: the recommencement conditions of three States, the workplace rules of four, the waiting-room limits of Michigan and the face-covering requirements by name of five jurisdictions, exposure controls on the clinic's premises; the in-person examination waived in California, Hawaii, Maine and Pennsylvania, and Kentucky's Board order ratified by the General Assembly on March 30. GR: capacity and appointment conditions under the winter frameworks. BD: the traveler quarantines and testing orders of New York, Hawaii, Pennsylvania, Maryland, Vermont and others. SH and training: gathering caps at ten to twenty-five. HR: the federal and California vaccinator designations redeploying licensed staff. OP: telework mandates in Minnesota, Pennsylvania, Oregon, Colorado, California, Washington, New Jersey and Kentucky. WF: schools remote or hybrid; the conveyance order on every transit commute. CB: owners under the winter regimes.¹⁴¹

The second quarter of 2021

On April 1, 2021: Colorado's Thirteenth Amended PHO 20-29 (superseded April 16); Minnesota's EO 20-51 (to May 27) and telework mandate (to April 14); Oregon's EO 20-22 (to June 30) and Appendix A-10; Michigan's MIOSHA rules and MDHHS orders (to June 22); Virginia's permanent standard; California's section 3205, its mandatory face-covering requirement of June 18, 2020 (Ex. CA-016) and DCA waivers; Pennsylvania's face-covering order naming veterinary clinics (to June 28) and Department of State waiver; Delaware's face-covering and employee-exclusion requirements at "facilities providing veterinary care"; Kentucky's pet-care requirements (to June 11); Hawaii's § 471-10 suspension and statewide face-covering requirement, the airborne-transmission control on every indoor premises in the State; Maine's Executive Order 35 and telework mandate (to June 30); the federal conveyance, entry, testing, workplace and supply orders; and the general regimes of every State that had not yet ended them.¹⁴² Inside the quarter: Oregon OSHA made its rule permanent May 4; Proclamation 10199 suspended entry from India from May 4; TSA extended the surface directive May 12 through September 13; Delaware's Twenty-Ninth Modification of May 18 kept face coverings at "facilities providing veterinary care," with the business duty to exclude isolated and quarantined employees, to July 12, 2021; Pennsylvania's Act 21 of June 11 extended the regulatory suspensions, including the Department of State telemedicine waiver, to September 30, 2021; the CDC published the dog-importation suspension June 16, effective July 14; Cal/OSHA readopted section 3205 June 17; OSHA published the Healthcare ETS June 21; Maine's Executive Order 40 of June 30 extended Executive Order 35 § I(A) to August 30, 2021; Oregon's Executive Order 21-15 rescinded EO 20-22 as of June 30 and Oregon OSHA's AO 5-2021 removed Appendix A-10's face-covering and distancing provisions "leaving only the personal protective equipment provisions"; and Minnesota's legislature terminated the peacetime emergency at 11:59 p.m. July 1.¹⁴³ On June 30, 2021: the Colorado, Minnesota, Michigan, Kentucky and Pennsylvania industry-specific instruments had ended on April 16, May 27, June 22, June 11 and June 28; Oregon's EO 20-22 had been rescinded as of 12:01 a.m. that day by EO 21-15 (Ex. OR-043); in force were Virginia's standard, California's section 3205 and DCA waiver, the Oregon OSHA PPE provisions for veterinary clinics, Delaware's veterinary-facility face-covering and exclusion requirements, Hawaii's Twenty-First Proclamation, Maine's § I(A), Pennsylvania's Act 21, Kentucky's HJR 77 (enjoined until August 21, 2021, the Board of Veterinary Examiners Order meanwhile remaining in force under the Governor's emergency, Executive Order 2020-215, whose orders continued while the 2021 legislation was enjoined (Ex. KY-001; Ex. KY-055)), the DEA exceptions and the PREP Act designation, with the FDA's enforcement policy as the guidance record of the compelled substitute, the CDC dog-importation notice awaiting its effective date, the federal conveyance, entry, testing and border orders, the FEMA rule on its last day, and the State emergencies of thirty-five jurisdictions.¹⁴⁴

CL and EM: the recommencement conditions of Colorado, Minnesota and Oregon through their stepped expiry; the workplace rules of Michigan (to June 22), Oregon, Virginia and California; face coverings by name, as exposure controls on the clinic's premises, in Pennsylvania (to June 28), Delaware (with the duty to exclude isolated and quarantined employees) and Michigan (with its waiting-room limits); telemedicine under the California, Hawaii, Maine and Pennsylvania regimes and Kentucky's Board of Veterinary Examiners Order of April 16, 2020 (Ex. KY-046; Ex. KY-056). GR: Kentucky's crate-and-curbside rule to June 11; Colorado's capacity conditions to April 16; the face-covering and distancing conditions on personal services. BD: the traveler quarantines of Hawaii, Kansas and Rhode Island through the quarter and the entry and border orders. SH: gathering caps to their expiry dates. HR: the vaccinator designations. OP: telework mandates to their expiry (Minnesota April 14; Pennsylvania April 3; Oregon May 6; Maine, New Jersey and Washington June 4 to June 30). WF: schools under mandatory standards to year end; the conveyance order. CB: owners under the general regimes to their end dates and the Hawaii regime throughout.¹⁴⁵

The third quarter of 2021

Between July 1 and September 30, 2021, the operation of the veterinary and animal-services industry was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19. On every day of the quarter the DEA's emergency exceptions and the PREP Act designation of veterinarians as vaccinators governed how the industry prescribed, dispensed and deployed its licensed workforce, and the FDA's enforcement policy under which the examination and premises-visit rules of the federal VCPR went unenforced, guidance by its own legend, remained the rule; on every day of the quarter the federal conveyance, entry, testing and border orders governed the industry's commuting staff and traveling customers; on every day of the quarter Cal/OSHA's section 3205 and Virginia's 16VAC25-220 bound every veterinary employer in those States and Oregon OSHA's permanent rule bound every Oregon veterinary clinic to its PPE provisions and, from August 13, to its restored Appendix A-10 "Veterinary Clinics" and the Health Authority's indoor face-covering rule, the airborne-transmission control paired with the appendix's protective-equipment duties; the California telemedicine waiver was extended on July 1 and August 31 to October 31, 2021, Maine's licensing suspension ran to August 30, Pennsylvania's telemedicine waiver ran to September 30 and was extended that day to March 31, 2022, Kentucky's Board order was extended on September 7 to January 15, 2022, Hawaii's telehealth suspension ran to August 6 and its statewide face-covering requirement, the airborne-transmission control on every indoor premises in the State, ran the whole quarter, and Delaware's face-covering and employee-exclusion requirements at "facilities providing veterinary care" ran to July 12; from July 14 the Centers for Disease Control and Prevention suspended the importation of dogs; and inside the quarter six States, the District of Columbia and the largest counties and cities reinstated universal indoor face coverings, airborne-transmission controls carrying entry and business-enforcement conditions, on every premises this industry occupies and Hawaii's statewide requirement ran throughout, the schools of the workforce reopened under mask and quarantine orders in at least eighteen States, and the State emergencies of thirty-five jurisdictions on July 2 and twenty-five on September 21 kept alive the instruments listed below. This section is written to be read alone.

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

Our records indicate there were no government orders related to COVID-19 in effect during the quarter(s) you claimed ERC which could have fully or partially suspended your trade or business.

Section 3134(c)(2)(A)(ii)(I), enacted by the American Rescue Plan Act for the third and fourth quarters of 2021, 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)."¹⁴⁷ It does not ask whether the orders were addressed to the employer, whether the employer was designated essential, whether the orders were issued by a governor rather than a licensing department, an occupational-safety agency or a federal agency, whether the employer could have operated by telephone or from a parking lot, or whether the effect exceeded a percentage. It asks whether orders limited commerce, travel or group meetings, and whether the operation was partially suspended during the quarter because of them. Tri-State holds that a partial suspension includes a "delay" or "interruption" of a more than nominal portion of the operation and that the statute's causation standard is but-for causation.¹⁴⁸ The 2021 re-enactment carried the clause forward without change, ten days after the Notice was released, and the United States has represented in two courts that the Notice's percentage is a safe harbor and not a requirement; this analysis holds the United States to that representation.¹⁴⁹

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

B-1. The federal instruments specific to the industry

The instruments of this subpart are Ex. AGY-FED-HEALTH-OTHER-009; Ex. AGY-FED-HEALTH-OTHER-010; Ex. AGY-FED-HEALTH-OTHER-011; Ex. SEC-26-003; Ex. AGY-FED-HEALTH-OTHER-126; Ex. AGY-FED-HEALTH-OTHER-048; Ex. AGY-FED-HEALTH-OTHER-049; Ex. ECO-A-071; Ex. FED-074 and, as guidance cited for its dates only, Ex. SEC-26-001. Issuers: the Drug Enforcement Administration under 21 U.S.C. §§ 802(54)(D), 821-823 and 21 C.F.R. § 1307.03; the Secretary of Health and Human Services under 42 U.S.C. § 247d-6d; the Centers for Disease Control and Prevention under 42 U.S.C. § 264; the Food and Drug Administration under 21 U.S.C. § 360bbb-3. Dates and operative clauses: the DEA exceptions of March 16, 20 and 25, 2020 for telemedicine prescribing, early refills and practice outside the registered State, for the duration of the public health emergency, which was renewed effective July 20, 2021; the PREP Act Seventh Amendment, effective March 11, 2021, authorizing "a ... veterinarian licensed or certified to practice under the law of any state who prescribes, dispenses, or administers COVID-19 vaccines" and "a ... veterinary student with appropriate training in administering vaccines"; the CDC's order published June 16, 2021 and effective July 14, 2021, suspending the importation of dogs from more than one hundred countries; the FDA's revocation of the emergency authorizations for decontamination systems effective June 30, 2021 and for imported non-NIOSH-approved respirators effective July 6, 2021; and the scarce-materials designation, extended July 7, 2021 to November 15, 2021, under which the accumulation of respirators, masks, gloves and gowns above reasonable demand remained a federal crime. Enforcement: the underlying regulations of 21 C.F.R. part 530 and § 558.6 remained in force and enforceable; DEA registration; PREP Act immunity conditioned on compliance; CDC refusal of entry and the customs laws; the criminal provisions of the Defense Production Act. Status: in force July 1 and September 30, 2021 (the dog-importation suspension from July 14; the respirator revocations from their effective dates). Functions: CL, EM, RT, SC, HR, SH, CB. Context, not order: the Food and Drug Administration's Center for Veterinary Medicine issued Guidance for Industry #269 (Ex. SEC-26-001), guidance by its own legend ("Contains Nonbinding Recommendations"), on March 24, 2020, listed it at 85 Fed. Reg. 28010 (Ex. SEC-26-005) and withdrew it effective February 21, 2023, 87 Fed. Reg. 78111 (Ex. SEC-26-002); under it "FDA generally intends not to enforce the animal examination and premises visit VCPR requirements relevant to FDA regulations governing Extralabel Drug Use in Animals (21 CFR part 530) and Veterinary Feed Directive Drugs (21 CFR 558.6)." Those dates are the federal record that the substitute the orders compelled for the in-person examination remained the rule on every day of the quarter; the policy is cited as that record and never as an order.¹⁵⁰

B-2. The federal conveyance, entry, testing and border instruments

The instruments of this subpart are Ex. FED-020; Ex. FED-051; Ex. FED-052; Ex. FED-056; Ex. FED-042; 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. Issuers: the Centers for Disease Control and Prevention under 42 U.S.C. § 264; the Transportation Security Administration; the President under 8 U.S.C. § 1182(f); the Department of Homeland Security. Dates and operative clauses: the conveyance mask order, effective February 1, 2021 "until further notice" ("Persons must wear masks over the mouth and nose when traveling on conveyances into and within the United States"; "A conveyance operator ... must require all persons onboard to wear masks for the duration of travel"); Security Directive 1582/84-21-01A, effective May 12 through September 13, 2021, and Security Directive 1582/84-21-01B, effective September 14, 2021 through January 18, 2022, requiring every transit agency, railroad and bus company to give notice that "Federal law requires wearing a mask," to refuse boarding and to remove violators; the inbound-testing order barring the introduction of any aircraft passenger from any foreign country without a negative test; Proclamations 9984, 9992, 10143 and 10199 suspending entry from China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa and India; the land-border notifications of June 23, July 22, August 23 and September 22, 2021, each prohibiting non-essential travel across the Canadian and Mexican borders for a further month; and the Title 42 order of October 13, 2020, replaced without interruption on August 2, 2021. Enforcement: criminal fines under 18 U.S.C. §§ 3559 and 3571 and 42 U.S.C. § 271; refusal of boarding; refusal of entry. Status: in force July 1 and September 30, 2021, each chain in its then-current instrument. Functions: WF (every employee who commuted by bus, rail or rideshare), CB (every traveling boarding customer; every Canadian and Mexican customer of a border practice; the commuting Canadian practice owner), BD (the demand the travel orders removed), HR (every foreign-trained veterinarian and every H-2A worker of the industry's agricultural customers awaiting entry).¹⁵¹

B-3. The federal workplace, supply, eviction and predicate layer

The instruments of this subpart are Ex. FED-060; Ex. FED-270; Ex. FED-271; Ex. FED-272; Ex. FED-278; Ex. FED-063; Ex. FED-064; Ex. FED-275; Ex. FED-280; Ex. FED-025; Ex. FED-026; Ex. SEC-13-014; Ex. FED-364; Ex. FED-379; Ex. FED-344; Ex. FED-016; Ex. FED-009. Dates and operative clauses: Executive Order 13991 (masks and distancing of every person "in Federal buildings or on Federal lands") with OMB M-21-15's non-occupancy provisions and M-21-25 (reentry plans by July 19; thirty days' notice); the Safer Federal Workforce Task Force's Model Safety Principles of July 29, 2021 (masks for all persons regardless of vaccination status in areas of substantial or high transmission; employees and onsite contractors "must sign an attestation" of vaccination status; agency-head approval for any federally hosted event over fifty participants) and its Certification of Vaccination form of August 2021; Executive Orders 14042 and 14043 of September 9, 2021 and the OMB determination of September 28, each issued inside the quarter with private obligations only from October 15, 2021, cited as the federal government's own statement, in the quarter, that the emergency continued; the Department of Defense travel restrictions of March 15, 2021 "until further notice"; the CDC eviction moratorium to July 31 and its successor of August 3 to August 26, 2021; HUD's Mortgagee Letter 2021-19 of July 30, 2021, effective August 1 on the expiry of Mortgagee Letter 2021-15's moratorium of July 31, and the VA's Circular 26-21-14 of July 30, 2021, carrying the moratoria on foreclosure-related evictions "[t]hrough September 30, 2021"; the CFPB's Regulation X rule from August 31, 2021; the renewal of the public health emergency effective July 20, 2021; and the President's memorandum of August 17, 2021 reciting "the nationwide emergency declaration of March 13, 2020." Enforcement: federal employment and contract law; criminal fines under the CDC order; conditions of participation. Status: in force July 1 and September 30, 2021, save the eviction orders that expired July 31 and August 26. Functions: CB (the customer base under the moratoria and the federal workforce under the mask and attestation rules), OP, WF.¹⁵²

B-4. California

The instruments of this subpart are Ex. CA-024; Ex. SEC-02-047; Ex. CA-029; Ex. CA-036; Ex. AGY-ST-HEALTH-BOARDS-040; Ex. AGY-ST-HEALTH-BOARDS-042; Ex. AGY-ST-HEALTH-BOARDS-037; Ex. CA-035; Ex. CA-031; Ex. CA-030; Ex. MET-LA-017; Ex. MET-LA-018; Ex. MET-LA-019; Ex. MET-LA-035; Ex. MET-LA-045; Ex. MET-LA-052; Ex. MET-LA-053; Ex. MET-SFO-008; Ex. MET-SFO-010; Ex. MET-SFO-071; Ex. MET-SFO-011; Ex. MET-SAC-015; Ex. MET-SAN-022; Ex. MET-SAN-023; Ex. MET-SAN-024. Issuers: the Occupational Safety and Health Standards Board under Labor Code §§ 142.3 and 144.6; the State Public Health Officer under Health and Safety Code §§ 120125 and 120140; the Director of the Department of Consumer Affairs under Government Code § 8571 and Executive Order N-39-20; the county health officers. Dates and operative clauses: Cal/OSHA's section 3205, readopted June 17, 2021, required every California employer, every veterinary practice, kennel, grooming salon and shelter among them, to maintain a written COVID-19 prevention program, to exclude exposed and infected employees from the workplace with pay, to give notice of exposure, to offer testing at no cost and to provide respirators on request; the State Public Health Officer's order of June 11, 2021, effective June 15, kept masks for unvaccinated persons indoors and mandatory guidance for mega events and for K-12 and child care; the Department of Consumer Affairs' Waiver DCA-21-173 of July 1, 2021 further extended the June 4, 2020 order waiving the in-person examination requirement of 16 C.C.R. § 2032.1 for veterinary telemedicine within an existing VCPR and extending prescription-refill periods, to August 31, 2021, and Waiver DCA-21-193 of August 31, 2021 extended it to October 31, 2021; DCA-21-137 (veterinarians ordering and administering COVID-19 vaccines) ran without fixed termination; the Department of Public Health's face-covering guidance of July 28, 2021 recommended universal indoor masking and the county orders that followed required it: Los Angeles County from 11:59 p.m. July 17 (revised August 19), the City of Los Angeles and Long Beach from July 17, Pasadena from July 22, the eight Bay Area jurisdictions from August 3, Sacramento County from July 30 (with an employer enforcement duty), and San Diego County's isolation and quarantine orders the whole quarter; the State's health-care-worker orders of July 26 and August 5, 2021 reached the industry's human-health counterparties and its staff's household members. Enforcement: Labor Code § 6317 citations; Health and Safety Code § 120275 (misdemeanor); license discipline under the Veterinary Medicine Practice Act. Status: section 3205, the June 11 order, DCA-21-137, the DCA veterinary waiver (DCA-21-173 from July 1) and the San Diego orders in force July 1, 2021; on September 30, 2021 the same instruments in their then-current form (DCA-21-193; the June 11 order as posted September 21) together with the county face-covering orders from July 17, 22, 30 and August 3. Functions: CL, EM, GR, BD, SH, RT, HR, OP, WF, CB.¹⁵³

B-5. Oregon

The instruments of this subpart are Ex. OR-041; Ex. OR-044; Ex. OR-049; Ex. OR-048; Ex. OR-043; Ex. OR-046; Ex. OR-045; Ex. OR-047. Issuers: Oregon OSHA under ORS 654.025 and 656.726; the Oregon Health Authority under ORS 431A.010 and 433.441; the Governor under ORS 401.165. Dates and operative clauses: Executive Order 21-15 rescinded EO 20-22 as of June 30, 2021 and extended the emergency to December 31, 2021; Oregon OSHA's permanent rule OAR 437-001-0744 (Administrative Order 2-2021, May 4, 2021) bound every Oregon workplace, and Administrative Order 5-2021 of June 30, 2021 removed Appendix A-10's mask and distancing provisions "leaving only the personal protective equipment provisions," so that on July 1 every Oregon veterinary clinic remained under the appendix's PPE duties; on August 13, 2021 Administrative Order 10-2021 restored Appendix A-10 as "Veterinary Clinics," under which "veterinary employers must provide and ensure the use of personal protective equipment" in accordance with the CDC's veterinary table, and OAR 333-019-1025 required face coverings in every indoor space including "public and private workplaces" from the same day, the airborne-transmission control paired with the appendix's protective-equipment duties; OAR 333-019-1010 (August 5, replaced August 25) required vaccination or testing, then vaccination by October 18, of every health-care provider and staff member, an order that reached the industry's human-health counterparties; OAR 333-019-1015 masked every school from August 2; Executive Order 21-29 of August 13 required vaccination of executive-branch employees. Enforcement: ORS 654.071 and 654.086 (Oregon OSHA penalties); ORS 431A.010 ($500 per day) and 401.990 (Class C misdemeanor). Status: the permanent rule with A-10's PPE provisions and EO 21-15 in force July 1, 2021; on September 30, 2021 the same together with AO 10-2021's restored Appendix A-10 and OAR 333-019-1025 from August 13, and the school rule from August 2. Functions: CL, EM, GR, BD, SH, RT, SC, OP, WF, CB.¹⁵⁴

B-6. Virginia

The instruments of this subpart are Ex. VA-037; Ex. VA-038; Ex. VA-041; Ex. VA-042; Ex. VA-044; Ex. VA-045. Issuer: the Safety and Health Codes Board under Va. Code § 40.1-22(6a), enforced by the Department of Labor and Industry under § 40.1-49.4; the State Health Commissioner; the Supreme Court of Virginia. Dates and operative clauses: 16VAC25-220, the Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19, effective as a permanent standard January 27, 2021 and amended effective September 8, 2021, binding "every employer, employee, and place of employment" under VOSH jurisdiction, classifying "veterinary settings" among "medium" exposure workplaces subject to mandatory duties: hazard assessment, exposure notification within twenty-four hours, exclusion of infected and symptomatic employees, physical distancing and face coverings where distancing is not maintained, sanitation and, for employers of eleven or more, a written infectious disease preparedness and response plan; the Commissioner's Order of Public Health Emergency Ten of August 12, 2021 required a face covering of every person aged two and older in every K-12 school; Executive Directive 18 required disclosure, weekly testing and masking of unvaccinated State employees and contractors from September 1; the judicial emergency ran from March 16, 2020 through October 13, 2021. Enforcement: VOSH citations and penalties under § 40.1-49.4; Class 1 misdemeanor under §§ 32.1-27 and 44-146.17. Status: the standard in force July 1 and, as amended September 8, on September 30, 2021; the school order from August 12; the directive from September 1. Functions: CL, EM, GR, BD, SH, RT, OP, WF, CB.¹⁵⁵

B-7. The State telemedicine and licensing regimes of Pennsylvania, Maine, Kentucky and Hawaii

The instruments of this subpart are Ex. PA-040; Ex. PA-043; Ex. PA-091; Ex. PA-042; Ex. ME-060; Ex. ME-014; Ex. ME-005; Ex. KY-046; Ex. KY-056; Ex. KY-001; Ex. KY-049; Ex. HI-023; Ex. HI-024; Ex. HI-026; Ex. HI-016. Pennsylvania: the Department of State's waiver of March 18, 2020 permitting every licensee of the health-licensing boards, "Veterinary Medicine" among them, to practice by telemedicine, carried by Act 21 of 2021 (June 11, 2021) to September 30, 2021 and by Act 73 of 2021 (September 30, 2021) to March 31, 2022, the General Assembly finding the suspensions "in effect on September 30, 2021"; the Acting Secretary of Health's order of August 31, 2021, effective September 7, masking every school entity and licensed child-care provider. Maine: Executive Order 35 FY 19/20 § I(A), suspending enforcement of the licensing statutes and rules "in Order to Facilitate Health Care and Veterinary Care," extended by Executive Order 40 FY 20/21 ¶ 6 to August 30, 2021, with the licenses issued under §§ I(C)-(D) remaining valid pending adjudication; Executive Order 16 § I(F) to August 30, 2021. Kentucky: the Board of Veterinary Examiners Order of April 16, 2020, ratified by 2021 HJR 77 and, after the injunction against that resolution dissolved on August 21, 2021, extended by 2021 Special Session HJR 1 of September 7, 2021 to January 15, 2022, the same resolution extending the State of Emergency to that date; while the injunction against HJR 77 stood (to August 21, 2021), the Board order remained in force under the Governor's emergency, Executive Order 2020-215 (Ex. KY-001), whose orders continued while the 2021 legislation was enjoined, as the Supreme Court of Kentucky's opinion recites of the sequence (Ex. KY-055), and HJR 1 then extended it to January 15, 2022 (Ex. KY-056), so that the order was in force on every day of the quarter by one instrument or the other; Executive Order 2021-386 ¶ 4's continuing health-care face coverings to September 7. Hawaii: the Twenty-First Proclamation of June 7, 2021, adopted "as rules that shall have the force and effect of law" and enforceable as a misdemeanor, carrying the suspension of HRS § 471-10 "to the extent necessary to enable veterinarians to engage in telehealth" without a pre-existing VCPR or a physical examination of the patient, the Statewide Face Covering Requirement and Safe Travels, to August 6, 2021; the Emergency Proclamation of August 5, 2021 continuing face coverings and Safe Travels and imposing vaccination-or-weekly-testing on every State and county employee from August 16; Executive Order 21-06 of September 1, 2021 defining "Health care professional" to include "veterinarians licensed pursuant to chapter 471" and "rendering assistance" to include cancelling or postponing elective procedures as directed by the Department of Health. Status: the Pennsylvania, Maine, Kentucky and Hawaii regimes in force July 1, 2021; on September 30, 2021 Act 73, HJR 1, the August 5 proclamation and EO 21-06 in force, Maine's § I(A) having ended August 30 and Hawaii's § 471-10 suspension August 6. Functions: CL, EM, RT, HR, OP, CB.¹⁵⁶

B-8. Delaware

The instruments of this subpart are Ex. DE-038; Ex. DE-040; Ex. DE-041; Ex. DE-044; Ex. DE-045; Ex. DE-046; Ex. DE-047; Ex. DE-055. The Twenty-Ninth Modification of the Declaration of a State of Emergency, § E, effective May 21, 2021, required face coverings at "facilities providing veterinary care and similar healthcare services for animals" and kept business duties to exclude isolated and quarantined employees, to 12:01 a.m. July 13, 2021, when the State of Emergency terminated; a Public Health Emergency declared July 12, 2021 carried DHSS emergency regulations: universal K-12 and child-care masks from August 15-16 and vaccination-or-testing for health-facility staff and State employees from September 30, 2021. Enforcement: 20 Del. C. ch. 31 (criminal offense). Status: § E in force July 1-12, 2021; the Public Health Emergency and its regulations on September 30, 2021. Functions: CL, EM, GR, WF, CB.¹⁵⁷

B-9. The Delta-wave indoor face-covering and exposure-control orders of the States

The instruments of this subpart are Ex. LA-036; Ex. LA-038; Ex. LA-040; Ex. LA-034; Ex. OR-048; Ex. NM-060; Ex. NM-063; Ex. NM-067; Ex. NM-070; Ex. WA-070; Ex. WA-078; Ex. WA-072; Ex. IL-042; Ex. IL-043; Ex. IL-047; Ex. NV-041; Ex. NV-001; Ex. HI-016; Ex. HI-024; Ex. DC-057; Ex. DC-021; Ex. KS-095. Louisiana: Proclamation 137 JBE 2021, issued August 2 and effective August 4, 2021, required every person aged five and older to wear a face covering in any place outside a private residence, renewed by 167 JBE 2021 (August 31) and 181 JBE 2021 (September 28) to October 27, 2021, under a public health emergency that never lapsed, with violation punishable under La. R.S. 29:724. Oregon: OAR 333-019-1025 from August 13, 2021 (B-5). New Mexico: the order of June 30, 2021, effective July 1, kept masks for the unvaccinated and made COVID-Safe Practices mandatory for "all businesses, establishments, and non-profit entities" under a $5,000 per-violation penalty; Executive Order 2021-046 required State employees to vaccinate or test from August 2; the Secretary of Health's order of August 17, 2021 reinstated indoor face coverings for every person aged two and older from August 20, extended September 15 to October 15, 2021. Washington: the Secretary of Health's Order 20-03.3 required face coverings of unvaccinated persons and in listed settings from June 30; Order 20-03.4, effective August 23, 2021, masked every person indoors regardless of vaccination status and prohibited every business from admitting an unmasked person; Washington Ready of July 1, 2021 required employers to verify vaccination before unmasked work. Illinois: Executive Order 2021-20 of August 26, 2021 required every person over two to wear a face covering indoors from August 30, restated September 3 by Executive Order 2021-22 with an employer duty, under a disaster proclamation renewed monthly. Nevada: Directive 047 of July 27, 2021, effective July 30, required every person in a county of substantial or high transmission to wear a face covering indoors, which by August 24 was sixteen of seventeen counties, under a Declaration of Emergency that ran to May 20, 2022. Hawaii: the Statewide Face Covering Requirement of the Fifteenth Proclamation, carried in every successor through the August 5, 2021 proclamation and beyond. The District of Columbia: Mayor's Order 2021-097 of July 29, 2021 re-imposed universal indoor face coverings from 5:00 a.m. July 31, 2021 with $1,000 fines, under a public emergency extended to October 8, 2021. Kansas: Douglas County's order of August 18, 2021, effective August 19 to September 22, 2021, required face coverings of youth aged two to eleven in indoor public spaces, health-care settings and transportation, naming "veterinary" clinics among the settings. Status: Hawaii's requirement and New Mexico's June 30 order in force July 1, 2021; on September 30, 2021 the Louisiana, Oregon, New Mexico, Washington, Illinois, Nevada, Hawaii and District orders in force in their then-current instruments (Douglas County's having expired September 22). Each of these instruments is an occupational-health and airborne-transmission control on every indoor premises this industry occupies, enforced against the business as well as the individual where its terms so provide (New Mexico's $5,000 COVID-Safe Practices penalty, Washington's prohibition on admitting an unmasked person, Illinois's employer duty, the District's $1,000 fines), and each is cited as the exposure-control regime it imposed, not as a face covering alone. Functions: every function performed on a premises: CL, EM, GR, BD, SH, RT, OP, WF, CB.¹⁵⁸

B-10. The metropolitan reinstatements

The instruments of this subpart are Ex. MET-LA-018; Ex. MET-LA-019; Ex. MET-LA-035; Ex. MET-LA-045; Ex. MET-LA-053; Ex. MET-SFO-010; Ex. MET-SFO-071; Ex. MET-SFO-011; Ex. MET-SAC-015; Ex. MET-SAN-024; Ex. MET-DFW-028; Ex. MET-DFW-030; Ex. MET-DFW-031; Ex. MET-AUS-023; Ex. MET-AUS-024; Ex. MET-AUS-030; Ex. MET-AUS-050; Ex. MET-SAT-066; Ex. MET-SAT-067; Ex. MET-SAT-068; Ex. MET-HOU-038; Ex. MET-HOU-039; Ex. MET-HOU-052; Ex. MET-HOU-053; Ex. MET-SEA-018; Ex. MET-SEA-024; Ex. MET-SEA-027; Ex. MET-SEA-002; Ex. MET-HNL-033; Ex. MET-HNL-035; Ex. MET-HNL-037; Ex. MET-HNL-038; Ex. MET-STL-021; Ex. MET-STL-069; Ex. MET-STL-090; Ex. MET-CHI-026; Ex. MET-CHI-041; Ex. MET-CHI-049; Ex. MET-BAL-017; Ex. MET-BAL-018 (the rescission order of March 1, 2022, post-period, cited for the end date); Ex. MET-DEN-021; Ex. MET-DEN-022; Ex. MET-DEN-026; Ex. MET-DEN-023; Ex. MET-DEN-024; Ex. MET-DEN-033; Ex. MET-PHL-018; Ex. MET-PHL-019; Ex. MET-PHL-020; Ex. MET-PHL-021; Ex. MET-PHL-022; Ex. MET-NYC-017; Ex. MET-NYC-018; Ex. MET-NYC-019; Ex. MET-NYC-021; Ex. MET-NYC-035; Ex. MET-NYC-036; Ex. MET-BOS-013; Ex. MET-BOS-036; Ex. MET-BOS-063; Ex. MET-BOS-150; Ex. MET-BOS-131; Ex. MET-DCM-023; Ex. MET-DCM-048; Ex. MET-DCM-046; Ex. MET-DCM-047 (post-period recital); Ex. MET-DCM-044; Ex. MET-DCM-052; Ex. MET-MSY-027; Ex. MET-MSY-028; Ex. MET-MSY-029; Ex. MET-MSY-030; Ex. MET-MSY-063; Ex. MET-LAS-006; Ex. MET-LAS-007; Ex. MET-LAS-019; Ex. MET-LAS-018; Ex. MET-KC-002; Ex. MET-KC-006; Ex. MET-KC-045; Ex. MET-KC-067; Ex. MET-DET-013; Ex. MET-DET-015; Ex. MET-DET-005; Ex. MET-MSP-041; Ex. MET-MSP-051; Ex. MET-MSP-047; Ex. MET-MSP-064; Ex. MET-MIA-019; Ex. MET-MIA-020; Ex. MET-BNA-076; Ex. MET-SLC-029; Ex. MET-SLC-031; Ex. MET-SLC-032; Ex. MET-SLC-030; Ex. MET-PHX-016; Ex. MET-PHX-005. Each face-covering instrument in this subpart is an occupational-health and airborne-transmission control on every indoor premises this industry occupies in the issuing jurisdiction, cited as the exposure-control regime its text imposed and not as a face covering alone, together with the employer-enforcement, entry, proof-of-vaccination, gathering, courthouse and school conditions the same instruments attached where they did (Sacramento's employer enforcement duty; San Francisco's and New York City's proof-of-vaccination conditions; Honolulu's gathering caps and Required Conditions; Dallas County's commercial-entity duty). Los Angeles County reinstated universal indoor face coverings, an airborne-transmission control on every indoor premises in the county, from 11:59 p.m. July 17, 2021 and required health-care worker vaccination by September 30; the City of Los Angeles and Long Beach followed July 17 and Pasadena July 22, none lapsing before September 30. San Francisco and the seven other Bay Area jurisdictions required face coverings of everyone indoors from August 3 and San Francisco required proof of vaccination for indoor dining, fitness and large events from August 20; Sacramento County required face coverings of everyone indoors from July 30 with an employer enforcement duty; San Diego County's quarantine order was revised July 22. Dallas County required face coverings in every commercial entity, school and child-care center from 11:59 p.m. August 11, 2021 and continued to apply the order as county policy through the quarter; Austin, the Travis County Health Authority and Travis County required face coverings in schools, colleges and public facilities from August 11-24 under $1,000 penalties; Bexar County and San Antonio required them in schools and county facilities from August 10-11; Harris County required them in every school and licensed child-care center from August 12 and in every courthouse from August 12 through October 1. Seattle's Mayoral Directive #9 made vaccination a condition of City employment from October 18 and extended City telework through mid-October (August 9); the King County Executive ordered the same of every Executive Branch employee (August 10); and the King County Local Health Officer required a face covering of every person in every indoor public space and at every outdoor event of 500 or more (September 7). Honolulu capped gatherings at ten indoors and twenty-five outdoors from August 23, imposed Safe Access Oahu from September 13 and fixed the "Required Conditions" of every designated business by Exhibit B of Emergency Order 2021-13 from September 22. The City of St. Louis required face coverings of everyone indoors from 12:01 a.m. July 26 and St. Louis County from 8:00 a.m. July 26 (the County's order enjoined from August 3). Chicago required face coverings of everyone indoors from August 20, Cook County from August 23 and Oak Park from August 6. Baltimore City re-imposed indoor face coverings by its order dated August 10, 2021, effective immediately, in force to March 1, 2022. Denver adopted the Fourth, Fifth and Sixth Amended PHO 20-38 as its own, required vaccination of hospital, clinic, long-term care, school and City personnel by September 30 and required face coverings in schools and child care from August 17; Boulder County required them indoors from September 3. Philadelphia required face coverings in every indoor setting from August 12 and required vaccination of health-care workers from August 16 and City employees from September 1. New York City's Key to NYC required proof of vaccination of the workers and patrons of covered premises from August 17 with penalties from September 13, and its health-care and congregate staff orders ran from August 2 and 16. Boston required face coverings indoors from August 27, Somerville from August 20, Cambridge from September 3, Brookline from August 27 and Worcester in its municipal buildings from August 12. Prince George's County required a face covering of every person over five indoors from 5:00 p.m. August 8 by Executive Order 18-2021 of August 5, extended the requirement to every person over two on September 30 by Executive Order 21-2021, kept its county-building face-covering rules under the Chief Administrative Officer's memorandum of May 28, 2021 implementing Executive Order 14-2021, and required vaccination or weekly testing of its employees, volunteers and contractors by Executive Order 19-2021, each recited in Executive Order 22-2021 of October 4, 2021; Montgomery County required face coverings indoors from August 7; the Fairfax and Alexandria Circuit Courts required them in their courthouses from August 4 and 2. New Orleans required face coverings indoors from July 31 and proof of vaccination or a negative test for indoor venues from August 16; Jefferson Parish required face coverings indoors from August 4. Clark County, Nevada required a face covering of every employee of every business in indoor public spaces from July 22, and the Eighth Judicial District Court required one in every court facility from July 19. Kansas City required face coverings indoors from August 2 by order and from August 19 and September 23 by ordinance; Jackson County from August 9; Johnson County's schools from August 9. Oakland and Wayne Counties, Michigan required face coverings in every school and day care from August 24 and 27. Saint Paul, Ramsey County and Hennepin County required face coverings in their facilities from August 3-4, and the Hennepin County District Court ran remote-default to September 6. Miami-Dade renewed its local emergency weekly and required daily hospital reporting from July 29. Shelby County reimposed a countywide indoor face-covering requirement by Health Order No. 25 and issued a universal school and daycare masking directive in August 2021. Salt Lake City required a face covering of every employee and visitor in City buildings from July 28 and in its K-12 schools from August 20. The Arizona Superior Court required face coverings in every courthouse from August 9 and the Phoenix Union High School District from August 2. Status: the Honolulu tier orders, the San Diego County isolation and quarantine orders, the Prince George's County building face-covering memorandum and the Denver adoption of PHO 20-38 in force July 1; every instrument named in force on September 30, 2021 in its then-current form save those whose end dates are stated. Functions: every premises function; WF through the school and court orders; CB.¹⁵⁹

B-11. The State emergencies and the continuing and preemptive orders that carried the quarter elsewhere

The instruments of this subpart are Ex. CO-041; Ex. CO-053; Ex. CO-091; Ex. CO-043; Ex. CO-046; Ex. CO-055; Ex. TX-036; Ex. TX-037; Ex. TX-038; Ex. FL-030; Ex. FL-059; Ex. FL-063; Ex. FL-032; Ex. FL-033; Ex. GA-041; Ex. GA-042; Ex. GA-043; Ex. AZ-036; Ex. AZ-037; Ex. AZ-044; Ex. AZ-001; Ex. AL-052; Ex. AR-017; Ex. TN-035; Ex. NC-030; Ex. NC-031; Ex. WV-001; Ex. WV-063; Ex. MS-053; Ex. OK-042; Ex. OK-043; Ex. SC-045; Ex. UT-025; Ex. UT-041; Ex. UT-045; Ex. ID-013; Ex. ID-046; Ex. MT-072; Ex. WY-001; Ex. AK-030; Ex. AK-031; Ex. NE-050; Ex. NE-068; Ex. MO-018; Ex. MO-020; Ex. IA-039; Ex. IA-046; Ex. ND-082; Ex. SD-088; Ex. WI-039; Ex. MN-041; Ex. MN-044; Ex. MI-072; Ex. MI-057; Ex. IN-066; Ex. IN-068; Ex. MD-031; Ex. MD-058; Ex. NJ-050; Ex. NJ-051; Ex. NJ-053; Ex. NJ-055; Ex. NJ-056; Ex. NY-133; Ex. NY-071; Ex. NY-073; Ex. NY-136; Ex. NY-127; Ex. CT-048; Ex. CT-049; Ex. CT-050; Ex. RI-043; Ex. RI-044; Ex. RI-071; Ex. VT-044; Ex. NH-063; Ex. MA-049; Ex. MA-050; Ex. KS-057; Ex. KS-052. Colorado's Fourth, Fifth and Sixth Amended Public Health Orders 20-38 ran month by month through the quarter, keeping an employer implementation duty and face-covering duties in listed settings, under the Disaster Recovery Order of July 8; the Board of Health's rule of August 30 required vaccination of the staff of every licensed health facility. Texas's GA-38 of July 29, 2021, under a disaster renewed August 29, re-imposed with force of law daily reporting by "[e]very public or private entity" that tests and the vaccination-proof prohibitions, and GA-39 followed August 25. Florida's chapter 2021-8 barred vaccination-proof conditions from July 1 under a $5,000 penalty, Executive Order 21-101 voided every local order July 1, and Executive Order 21-175 and the Department of Health's rules of August 6 and September 22 governed the schools. Georgia's Economic Recovery orders of June 30, August 19 and September 20 continued the emergency and its regulatory suspensions. Arizona's Executive Orders 2020-12, 2021-05, 2021-06, 2021-09, 2021-10 and 2021-15 ran to September 29, 2021 under Executive Order 2021-16 of July 2, 2021 (Ex. AZ-044) and an emergency to March 30, 2022. Alabama proclaimed a new State of Emergency August 13; Arkansas Executive Order 21-14 ran July 29 to September 27; Tennessee's Executive Order 83 continued the emergency from August 6; North Carolina's Executive Order 220 required face coverings in health-care settings to July 30 and Executive Order 224 required vaccination or testing of Cabinet-agency workers from September 1; West Virginia's emergency and the paragraph 2 orders of Executive Order 12-21 ran through the quarter; Oklahoma's Senate Bill 658 and Executive Order 2021-16, South Carolina's Act 94 provisos, Utah's UPHO 2020-17, SB 195 and HB 1007, Idaho's Stage 4 Guidelines and June 18 proclamation, Montana's HB 702, Wyoming's Executive Order 2020-2, Alaska's DHSS order of May 1 and crisis-standards addendum of September 21, Nebraska's Executive Order 20-12 to August 27 and 21-12 from August 26, Missouri's Executive Orders 21-07 to August 27 and 21-09 thereafter, Iowa's proclamations and HF 847, North Dakota's HB 1465, South Dakota's Second Circuit order of July 6, and Wisconsin's chapter 252 local powers each governed what employers, localities and health-care facilities in those States could do or require. Minnesota's emergency ran to 11:59 p.m. July 1 and its State-workforce vaccination-or-testing policy from September 8; Michigan's residential care order and 2020 PA 238 ran the whole quarter; Indiana's Executive Orders 21-17 and 21-19 continued the emergency and gave the Department of Health's isolation and quarantine measures executive-order force from August 1; Maryland's emergency ran to August 15 and its hospital and nursing-home vaccination orders from September 1; New Jersey's State of Emergency, Executive Orders 242 and 243 carrying Executive Order 192's employee rules (Executive Order 243 ¶ 1 directing that every business requiring staff on site "must continue to follow the provisions of Executive Order No. 192 (2020)," Executive Orders 242 and 243 being the general mitigation orders that P.L. 2021, c. 103, § 1(14) continued to January 1, 2022 (Ex. NJ-036; Ex. NJ-050; Ex. NJ-051; Ex. NJ-053)), P.L. 2021, c. 103, school face-covering orders from August 9 and health-care vaccination-or-testing from September 7; New York's Subpart 66-3 to August 27 ("Businesses must provide, at their expense, such face coverings"), 10 NYCRR 2.60 and 2.61 from August 26-27, the HERO Act plans due August 5 and activated September 6; Connecticut's renewed emergency and Executive Orders 13 and 13A; Rhode Island's Executive Orders 21-68 and 21-69 (July 1-6, 2021) (Ex. RI-043; Ex. RI-044) and its Safe Activities regulation to August 31 (Ex. RI-071); Vermont's Executive Order 06-21; New Hampshire's isolation directives; Massachusetts' public health emergency and health-care face-covering order; Kansas's travel quarantine and adult-care testing order. Status: each in force on the dates stated. Functions: OP, WF, CB, HR; and, in Colorado, New Jersey, New York and Washington, every premises function.¹⁶⁰

B-12. The workforce layer: schools, child care and quarantine

The instruments of this subpart are Ex. ECO-B-029; Ex. ECO-B-036; Ex. ECO-B-054; Ex. ECO-B-066; Ex. ECO-B-079; Ex. ECO-B-080; Ex. ECO-B-087; Ex. CA-034; Ex. ECO-B-085; Ex. ECO-B-159; Ex. ECO-B-160; Ex. PA-042; Ex. KY-052; Ex. KY-053; Ex. KY-054; Ex. VA-044; Ex. DE-044; Ex. DE-045; Ex. LA-054; Ex. OR-045; Ex. WA-075; Ex. DC-074; Ex. NM-068; Ex. MI-081; Ex. MI-082; Ex. MI-083; Ex. MI-084; Ex. MI-085; Ex. IN-093; Ex. TX-053; Ex. NC-032; Ex. KS-057; Ex. NH-063; Ex. IN-092. The schools and child-care centers on which this industry's workforce depends reopened for the 2021-22 year under force-of-law mask and quarantine orders in New Jersey (August 9), Connecticut (August 5), Rhode Island (August 19), New York (August 27), Illinois (August 4 and 30), Pennsylvania (September 7), California (July 12), Delaware (August 15-16), Louisiana (August 4), Kentucky (August 10 to September 9), Virginia (August 12), Oregon (August 2), Washington (July 30), New Mexico (August 20), the District of Columbia (July 31) and the counties of Michigan, Texas, Indiana, Missouri and Tennessee; the quarantine rules of Indiana (September 1) and Florida (September 22) fixed when exposed children were sent home; the quarantine directives of Kansas, New Hampshire, Rhode Island and Indiana fixed when exposed employees stayed home; North Carolina's S.L. 2021-130 required every local board to adopt a face-covering policy. Status: from the dates stated through September 30, 2021. Functions: WF.¹⁶¹

C. How the instruments reached the functions

CL and EM

The clinical and emergency functions operated on every day of the quarter under the DEA exceptions that made telemedicine prescribing, early refills and out-of-State dispensing lawful, under the FDA enforcement policy, guidance by its own legend, that left extralabel dispensing without the in-person examination unenforced, under the State waivers of California (to October 31), Maine (to August 30), Pennsylvania (to March 31, 2022) and Hawaii (to August 6) that did the same for the State licensure rules, and under Kentucky's Board of Veterinary Examiners Order of April 16, 2020 (Ex. KY-046; Ex. KY-056), in force to January 15, 2022 by force of the General Assembly's joint resolutions; they operated in California under section 3205's written program, exclusion-with-pay, notice and respirator duties, in Virginia under 16VAC25-220's hazard assessment, notification, exclusion, distancing and face-covering duties, in Oregon under Appendix A-10's PPE duties and, from August 13, under the restored "Veterinary Clinics" appendix and the indoor face-covering rule; every customer who entered a Delaware veterinary facility through July 12, and every customer who entered any veterinary premises in Louisiana from August 4, Oregon from August 13, New Mexico from August 20, Washington from August 23, Illinois from August 30, Nevada from July 30, Hawaii throughout, the District from July 31, Los Angeles from July 17, the Bay Area from August 3, Sacramento from July 30, St. Louis from July 26, Chicago from August 20, Baltimore from August 10, Philadelphia from August 12, New Orleans from July 31, Montgomery from August 7 and Prince George's from August 8, Boston from August 27, and the other cities named, was masked by order, under exposure-control regimes that bound the premises as well as the person; and in Hawaii from September 1 every veterinarian was a health care professional whom the Department of Health could direct to postpone elective procedures.¹⁶²

BD and GR

The boarding and grooming premises stood under the same workplace rules and face-covering orders, the exposure-control regimes those instruments placed on every premises; the boarding customer's travel stood under the conveyance, testing, entry and border orders on every day and under Hawaii's Safe Travels; the grooming table and the training class stood under the Delta-wave orders and, in Honolulu, under gathering caps of ten and twenty-five from August 23.¹⁶³

SH

The shelter and rescue operated from July 14 under the dog-importation suspension, under the gathering caps of Hawaii and Honolulu, and under the face-covering orders, airborne-transmission controls enforced against the premises, on every adoption floor in the reinstating jurisdictions.¹⁶⁴

RT and SC

The pharmacy dispensed under the DEA exceptions and GFI #269; the supply function bought respirators in a market from which the FDA had withdrawn the emergency authorizations for imported and decontaminated respirators on June 30 and July 6 and in which the scarce-materials designation ran to November 15.¹⁶⁵

HR

The industry's licensed workforce was a designated vaccination workforce under the PREP Act and California's DCA-21-137; its licensure regimes ran under the Pennsylvania, Maine, Kentucky, Hawaii and California instruments; and its hiring of foreign-trained staff ran under the entry proclamations.¹⁶⁶

OP

Administration carried section 3205's program, the Virginia plan for employers of eleven or more, the New York HERO Act plan, the Colorado employer implementation duty, the New Jersey Executive Order 192 employee rules, the Texas reporting duty and the Sacramento, Washington and Illinois employer enforcement duties.¹⁶⁷

WF

Workforce availability was governed by the school and child-care mask and quarantine orders that determined whether the staff's children were in school, by the conveyance order on every transit commute, by the quarantine directives of Kansas, New Hampshire, Rhode Island and Indiana, by the exclusion duties of section 3205 and 16VAC25-220, and by the vaccination conditions on household members employed in the human-health, school and public workforces of California, New York, New Jersey, Illinois, Washington, Oregon, Rhode Island, Maine, Maryland, Delaware, Colorado, Nevada, New Mexico and the District.¹⁶⁸

CB

The customer base stood under the indoor face-covering orders of seven States, the District and the largest cities, airborne-transmission controls carrying entry and business-enforcement conditions, the proof-of-vaccination regimes of New York City, San Francisco, New Orleans and Honolulu, the eviction moratoria through August 26 and September 30, the entry and border orders, and, for breeders, rescues and importers, the dog-importation suspension.¹⁶⁹

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"; it does not modify "orders," and Congress did not write "due to orders in effect during the calendar quarter." An operation that an order suspended in March 2020 and that the order's own reopening steps had not restored by July 1, 2021 was suspended during the third quarter of 2021 due to that order, because but for the order it would have been operating normally on July 1. Tri-State holds that a suspension includes a "delay" and that the statute's causation is but-for causation; a delay that ran into the quarter is a suspension during the quarter.¹⁷⁰ The Notice's Q&A-22 recognizes the same thing from the other direction: an employer whose operation was suspended for part of a quarter is an eligible employer for the whole of it, and Q&A-16's transition language treats the time an employer needs to move between modes of operation as part of the suspension.¹⁷¹

The arithmetic

The orders' own steps fix how long the restoration took. A Colorado veterinary practice whose elective surgeries were suspended on March 23, 2020 operated under Public Health Order 20-29's "Veterinary Facilities" conditions from April 27, 2020 through thirteen amendments to April 16, 2021, 389 days from suspension to release, with the release 76 days before the quarter began, and under PHO 20-38's employer duties on every day of the quarter (Ex. CO-007; Ex. CO-021; Ex. CO-022; Ex. CO-094; Ex. CO-051; Ex. CO-041). A Minnesota practice whose PPE-utilizing procedures were postponed "indefinitely" from 5:00 p.m. March 23, 2020 operated under Executive Order 20-51's plan, screening and consent requirements from May 10, 2020 to May 27, 2021, 430 days from postponement to release, with the release 35 days before the quarter began, under a peacetime emergency that ended at 11:59 p.m. on the quarter's first day (Ex. SEC-26-004; Ex. MN-018; Ex. MN-041). An Oregon veterinary clinic whose elective procedures were cancelled no later than March 23, 2020 operated under Executive Order 20-22's Health Authority conditions from May 1, 2020 to its rescission at 12:01 a.m. June 30, 2021, 464 calendar days from cancellation to release, with the release the day before the quarter began, under Oregon OSHA's Appendix A-10 from November 16, 2020, and under the appendix's PPE provisions on July 1 and its restored "Veterinary Clinics" appendix and the indoor face-covering rule from August 13 (Ex. OR-005; Ex. OR-015; Ex. OR-043; Ex. OR-032; Ex. OR-041; Ex. OR-044; Ex. OR-049; Ex. OR-048). A Michigan veterinary facility ordered on April 2, 2020 to postpone every non-essential in-person service and perform the rest by telemedicine operated under that order for 56 days, under Executive Order 2020-96's workplace rules from May 28, 2020, under MIOSHA's "veterinary clinics" rules from October 14, 2020 and MDHHS's waiting-room limits from October 29, 2020 to June 22, 2021, 446 days from the first order to the last release, with the release nine days before the quarter began (Ex. SEC-26-009; Ex. MI-030; Ex. MI-054; Ex. MI-059; Ex. MI-071; Ex. MI-074). A Kentucky grooming and boarding business closed on March 18, 2020 reopened May 11, 2020 under the pet-care requirements ("curbside, in a crate, or in an entry room to avoid interaction") that ran to June 11, 2021, 450 days, with the release twenty days before the quarter began (Ex. KY-004; Ex. KY-017; Ex. SEC-18-040; Ex. KY-049). A Pennsylvania veterinary clinic whose customers were masked by name from July 1, 2020, under the exposure-control order the Commonwealth placed on its health-care settings, was released from that order on June 28, 2021, three days before the quarter, and practiced by telemedicine under a waiver the General Assembly extended on the quarter's last day to March 31, 2022 (Ex. PA-015; Ex. PA-020; Ex. PA-100; Ex. PA-091; Ex. PA-040; Ex. PA-043). A Delaware veterinary facility whose customers were masked from April 28, 2020 was released on July 12, 2021, twelve days into the quarter (Ex. DE-017; Ex. DE-038; Ex. DE-040). A Kansas veterinary clinic whose customers were masked by name from July 3, 2020 was released on March 31, 2021 (Ex. KS-030; Ex. KS-040). A New Mexico grooming salon closed a second time from November 19 to December 2, 2020 operated under the county framework to June 30, 2021 and under the reinstated face-covering order, with the mandatory COVID-Safe Practices, from August 20 (Ex. NM-040; Ex. NM-060; Ex. NM-067). A California veterinary practice operated under the telemedicine waiver from June 4, 2020 to October 31, 2021 and under section 3205 from November 30, 2020 on every day of the quarter (Ex. AGY-ST-HEALTH-BOARDS-029; Ex. AGY-ST-HEALTH-BOARDS-042; Ex. CA-024). A Hawaii practice operated under the § 471-10 suspension from April 25, 2020 to August 6, 2021, 468 days, and under the statewide face-covering requirement, the airborne-transmission control on every indoor premises in the State, on every day of the quarter (Ex. HI-007; Ex. HI-023; Ex. HI-024). A Maine practice operated under Executive Order 35 from April 6, 2020 to August 30, 2021, 511 days (Ex. ME-014; Ex. ME-060). Every practice in the country dispensed extralabel under the FDA's enforcement policy, guidance by its own legend, from March 24, 2020 to February 21, 2023, dates that fix how long the compelled substitute remained the rule (Ex. SEC-26-001; Ex. SEC-26-002). The practices these orders governed had postponed and rebooked their surgical schedules under orders that changed on days' notice for fifteen months, cleared and closed their waiting rooms, moved their front desks to the parking lot and their consultations to the telephone, rationed and reused their protective equipment under inventory and allocation orders, laid off or furloughed kennel, grooming and reception staff whose functions the orders closed, and lost the boarding season of 2020 to the travel orders; the orders' own end dates show that the restoration had not been completed when the quarter began, and in California, Oregon, Virginia, Hawaii, Maine, Pennsylvania, Kentucky and Delaware the orders that compelled the change were still in force on July 1.¹⁷²

The four pathways

Continuing suspension reaches the third quarter of 2021 by four independent routes, each sufficient: (1) the orders in force on every day of the quarter (the DEA exceptions, the PREP Act designation, the conveyance, testing, entry and border orders, section 3205, 16VAC25-220, Oregon OSHA's rule, the California and Pennsylvania telemedicine waivers, the Hawaii face-covering requirement, an airborne-transmission control on every indoor premises, the Kentucky Board order), together with GFI #269 (Ex. SEC-26-001), cited as guidance and as the federal record of the compelled substitute; (2) the orders issued inside the quarter (the dog-importation suspension of July 14; the respirator revocation of July 6; the indoor face-covering reinstatements, airborne-transmission controls carrying entry and business-enforcement conditions, of Nevada, the District, Louisiana, Oregon, New Mexico, Washington and Illinois and of Los Angeles, the Bay Area, Sacramento, St. Louis, Chicago, Baltimore, Philadelphia, Boston, New Orleans, Kansas City, Clark County and their counterparts; Oregon OSHA's "Veterinary Clinics" appendix of August 13; the California, Pennsylvania and Kentucky extensions of July 1, August 31, September 7 and September 30; Hawaii's proclamation of August 5 and Executive Order 21-06; the school and child-care orders); (3) the orders whose own end dates fell inside the quarter (Delaware's July 12, Hawaii's August 6, Maine's August 30, Kentucky's September 7, Douglas County's September 22, Arkansas's September 27, Pennsylvania's September 30) and the orders released within weeks before it whose restoration steps ran into it (Michigan's June 22, Pennsylvania's June 28, Oregon's June 30, Minnesota's May 27, Kentucky's June 11, Colorado's April 16); and (4) the counterparty orders on the human hospitals, schools, courts, transit systems, landlords, breeders and agricultural producers on which the industry's operation depends.

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

The ground that no orders were in effect

Subpart B lists them, with issuer, date, operative clause, enforcement and status. The ground is not a legal position; it is a factual assertion, and it is false for the federal layer, for California, Oregon, Virginia, Pennsylvania, Maine, Kentucky, Hawaii, Delaware, the seven Delta-wave States, the District and Douglas County, Kansas, and for every metropolitan area named.

The ground that the orders had lifted

Subpart D answers this from the text and the arithmetic: the phrase "during the calendar quarter" modifies "suspended," the orders named in subpart B were in force, and the orders whose end dates preceded the quarter had not completed their own reopening steps when it began.

The ground that the instruments were guidance

Section 3205, OAR 437-001-0744, 16VAC25-220 and OAR 333-019-1025 are regulations enforced by citation and penalty; the face-covering orders are executive and health-officer orders enforced under State criminal codes, cited as the exposure-control regimes their terms imposed; the DCA waivers, Act 21 and Act 73, HJR 1 and the Hawaii proclamations are orders and statutes of the authorities that license the profession; the conveyance order carries criminal fines; the dog-importation suspension is a CDC order under 42 U.S.C. § 264. GFI #269 is guidance by its own legend and is cited as such: the federal accommodation to the State orders, whose dates prove that the compelled substitute was still the rule.

The ground that the employer was essential and remained open

The statute has no essential-employer exception, and the Notice's own Q&A-11 recognizes that an employer whose operations are permitted to continue is partially suspended if a more than nominal portion of them is suspended by order; the workplace standards, the face-covering orders and the telemedicine regimes were addressed to veterinary employers precisely because they remained open.¹⁷³

The ground that the orders reached customers, not the business

Section 3205, 16VAC25-220, Appendix A-10, the face-covering orders with business enforcement duties, the DCA waivers and the Kentucky Board order were addressed to the veterinary employer itself; the school, transit, border and importation orders reached the industry's counterparties, and Q&A-12 and the United States' own representation treat orders on third parties as suspensions of the employer's operation.¹⁷⁴

The ground that the modifications were nominal

A written prevention program, the exclusion of exposed staff with pay, a face covering on every customer at every door under an order enforced against the premises, PPE duties on every veterinary employer in Oregon, a telemedicine consultation in place of an examination and a boarding season without travelers reduce the visits a clinic can conduct and the staff available to conduct them; the Notice's own Q&A-18 treats as more than nominal a modification that reduces the ability to provide services, and the United States has represented that the percentage the Service applies is a safe harbor and not a requirement.¹⁷⁵ Each ground is answered in full in the answers section below.

F. The determination

What this analysis does not claim was in force

The proof for this quarter rests on the instruments listed in subpart B, each of which was in force on some day between July 1 and September 30, 2021, and on the continuing-suspension analysis of subpart D. The Food and Drug Administration's enforcement policy (Ex. SEC-26-001), guidance by its own legend, is not among the orders relied on; it is the dated federal record, March 24, 2020 to February 21, 2023, that the substitute the orders compelled for the in-person examination remained the rule on every day of the quarter. It rests on none of the following, each of which either had expired before July 1, 2021, took effect after September 30, 2021, or is cited only as a counterparty or workforce instrument and never as an order on this industry, and this analysis does not claim that any expired order suspended anyone by its own force after its expiration: every veterinary elective-procedure suspension (Colorado's D 2020 009, ended April 26, 2020; Minnesota's EO 20-09 and 20-17, May 10, 2020; Oregon's EO 20-10, May 1, 2020; Michigan's EO 2020-34, May 28, 2020; Indiana's EO 20-13 as a procedure suspension, April 26, 2020; Utah's UPHO 2020-03, April 21, 2020) (Ex. CO-007; Ex. SEC-26-004; Ex. MN-005; Ex. OR-005; Ex. SEC-26-009; Ex. IN-011; Ex. UT-003); every recommencement order (Colorado's PHO 20-29, superseded April 16, 2021; Minnesota's EO 20-51, rescinded May 27, 2021; Oregon's EO 20-22, rescinded June 30, 2021; Utah's protocols, May 15, 2020) (Ex. CO-022; Ex. CO-094; Ex. MN-018; Ex. OR-015; Ex. OR-043; Ex. UT-014); every grooming closure of the spring of 2020 and New Mexico's second closure, ended December 2, 2020 (Ex. ME-008; Ex. MN-012; Ex. CO-020; Ex. MA-017; Ex. OK-021; Ex. WV-026; Ex. HI-008; Ex. IL-013; Ex. MET-LA-032; Ex. NM-040); Kentucky's pet-care requirements, rescinded June 11, 2021 (Ex. SEC-18-040; Ex. KY-049); the MIOSHA rules and MDHHS orders, rescinded June 22, 2021 (Ex. MI-054; Ex. MI-059; Ex. MI-071; Ex. MI-074); the Kansas, Pennsylvania and Colorado face-covering orders (March 31, June 28 and May 15 and June 1, 2021) (Ex. KS-030; Ex. KS-040; Ex. PA-020; Ex. PA-100; Ex. CO-040); California's mandatory face-covering requirement of June 18, 2020, replaced June 15, 2021 (Ex. CA-016); Delaware's veterinary-facility face-covering requirement after July 12, 2021 (Ex. DE-038); Oregon OSHA's Appendix A-10 face-covering and distancing provisions between June 30 and August 12, 2021 (Ex. OR-044); Hawaii's § 471-10 suspension after August 6, 2021 (Ex. HI-023; Ex. HI-024); Maine's Executive Order 35 § I(A) after August 30, 2021 (Ex. ME-060); Kentucky's continuing health-care face coverings after September 7, 2021 (Ex. KY-049); the Jefferson County and Boulder County face-covering orders of May 2021 naming "dog grooming," rescinded May 15 and amended May 20, 2021 (Ex. MET-DEN-104; Ex. MET-DEN-114); the FFCRA leave mandate, ended December 31, 2020 (Ex. FED-170; Ex. FED-171); the FEMA allocation and export rule, ended June 30, 2021 (Ex. FED-078; Ex. FED-079); OMB M-21-15's occupancy cap, lifted June 10, 2021 (Ex. FED-270; Ex. FED-271); the CDC eviction order of June 24, 2021 after July 31 and the order of August 3, 2021 after August 26, 2021 (Ex. FED-025; Ex. FED-026); Douglas County's youth mask order after September 22, 2021 (Ex. KS-095); Arkansas's Executive Order 21-14 after September 27, 2021 (Ex. AR-017); Executive Orders 14042 and 14043, whose compliance dates fell after September 30, 2021 (Ex. FED-063; Ex. FED-064); the OSHA Healthcare Emergency Temporary Standard, which was in force but does not reach veterinary settings and is cited only as the order on the industry's human-health counterparties (Ex. FED-080; Ex. SEC-02-001); the health-care-worker vaccination mandates of California, New York, New Jersey, Illinois, Washington, Oregon, Rhode Island, Maine, Maryland, Delaware, Colorado and Nevada, which are defined by human-health licensure and are cited as counterparty and workforce instruments, never as orders on this industry (Ex. CA-030; Ex. CA-031; Ex. NY-071; Ex. NJ-056; Ex. IL-043; Ex. WA-077; Ex. OR-046; Ex. ME-061; Ex. MD-058; Ex. DE-046; Ex. CO-055; Ex. NV-055); and Washington's Proclamation 21-14, which expressly excludes "[v]eterinary health care settings" and is cited for that exclusion and, as to the human-health workers in the households of the industry's staff, as a counterparty and workforce instrument (Ex. WA-077). What remains after those exclusions is the inventory of subpart B, and it is sufficient on every day of the quarter.