Fitness, Arts, Entertainment and Sports

The six quarters

In each of the six quarters from the second quarter of 2020 through the third quarter of 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19 were in force on the quarter's first and last day, reached this industry's eleven functions and caused a temporary delay, interruption or termination of a more than nominal portion of its operations. The first five quarters are stated here from the instruments in force on their first and last days; the third quarter of 2021 is stated at length in its own section, because it is the quarter the Service's form letter describes as one in which no order was in effect.

The second quarter of 2020

On April 1, 2020 every gym, fitness studio, movie theater, live-performance venue, bowling alley, arcade and amusement facility in the United States was closed by order: statewide in forty-seven jurisdictions and by county or city order in Missouri, South Dakota, Utah and, for gyms, Nebraska; every organized sport was suspended; every casino was closed by its gaming regulator; every gathering above ten (in most States) or of any size (in New York City, Wake County and the Bay Area) was prohibited; and forty-two States and territories had ordered their residents to stay at home.¹⁴² The federal government had suspended routine visa services, closed the land borders to non-essential travel, stopped every cruise, closed the national parks and monuments on which regional tourism depends and put the FFCRA leave mandate into effect on April 1.¹⁴³ Reopening began April 24 in Georgia (gyms and bowling alleys), April 27 (theaters), May 1 in Oklahoma, Iowa and Wyoming, May 4 in Arkansas, May 8 in Alaska, May 11 in Alabama and Mississippi, May 15 in Louisiana and Montana, May 18 in Florida, Texas and South Carolina, May 22 in Kansas, May 26 in Ohio's gyms, May 29 in Nevada, June 1 in Delaware, New Mexico, Vermont, Kentucky and Nebraska, June 5 in Florida's theaters and Louisiana's Phase 2, June 10 in Minnesota, June 12 in Indiana's theaters and California's variance-county gyms, June 15 in Delaware's Phase 2 and Arkansas's Phase 2, June 17 in Connecticut, June 19 in Maryland's fitness centers and Washington's Phase 2 counties, June 22 in Nebraska's Phase III and June 26 in New York's Phase Four arts venues; every reopening carried a cap of twenty-five to fifty percent, a class or reservation condition, closed locker rooms, saunas and child care, and distancing of six to fourteen feet.¹⁴⁴ On June 30, 2020 gyms, theaters and indoor amusement remained closed by order in New Jersey (to September 1 and 4), gyms in New York (to August 24; New York City September 2), Massachusetts (Phase III from July 6 and 13), Michigan outside Regions 6 and 8 (gyms to September 9; theaters to October 9), California's theaters and non-variance gyms, Washington's Phase 1 and 2 counties, New Mexico's theaters and classes, the District's theaters, Illinois's indoor amusement, Pennsylvania's yellow counties and Hawaii; Arizona had re-closed gyms, theaters and water parks on June 29; and live-audience sport was closed everywhere, with Texas permitting professional sports only "without spectators" from May 31 and Colorado and Florida capping or barring spectators.¹⁴⁵ The Census Bureau's measure of the quarter is a 51.2 percent fall in the industry's revenue from the preceding quarter and the Bureau of Labor Statistics' is the loss of 1,293,800 jobs, or 51.8 percent of the industry's employment, between February and April 2020.¹⁴⁶

The facilities (FC) closed in every jurisdiction on April 1 and reopened, where it reopened, at twenty-five to fifty percent with amenities closed; CL prohibited, then capped at ten or one instructor per cohort; PE dark in every jurisdiction through May and in most through June, with live performance the last category permitted anywhere; SP suspended in every league from the professional to the recreational, with practice permitted in some States from late May and competition without spectators from June; AM closed in every jurisdiction, with amusement parks closed in California, New Jersey, New York and most of the Northeast through the quarter; CN closed with the venues and confined to take-out where a venue had a kitchen; MK cancelled by gathering prohibition and permit refusal; HR without certification courses, pools or consulates; OP converted to remote operation and to refund processing under the telework mandates; WF confined at home, quarantined and paid under the FFCRA mandate; CB ordered to stay home in forty-two States and territories.¹⁴⁷

During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the closure orders of every State and the District naming this industry's facilities (Ex. NY-010; Ex. NY-012; Ex. CT-004; Ex. MI-005; Ex. CO-004; Ex. WA-009; Ex. TX-003; Ex. FL-008; Illinois Executive Order 2020-10; Ex. OR-007; Virginia Executive Order 53; Ex. MA-008; Ex. NC-004), the county and city closure orders of the four States without them (Ex. MET-SLC-042; Ex. MET-STL-005; Ex. MET-KC-057; Ex. SD-005), the stay-at-home orders of forty-two States and territories (Ex. LAW-201), the gaming regulators' closure orders (Ex. IL-059; Ex. IN-083; Ex. MO-026; Ex. MD-035; Ex. AR-042; Ex. NV-004), the sports suspensions (Texas Executive Order GA-23; Ex. SEC-17-024; Ex. NE-009), the reopening orders' capacity, class, amenity and distancing conditions (Georgia Executive Order 04.20.20.01; the Alabama Order of the State Health Officer of May 8, 2020; Ex. NV-017; Texas Executive Order GA-21; Ex. WY-012; Ex. LA-010), the federal visa, entry, border and sailing suspensions (Ex. FED-327; Ex. FED-210; Ex. FED-216; Ex. FED-027) and the FFCRA leave mandate (Ex. FED-170), 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 closing the industry's facilities, classes, performances, seasons and attractions outright for most of the quarter and by permitting a fraction of each to reopen only under conditions that fixed how many people could enter, what they could do there and when.¹⁴⁸

The third quarter of 2020

On July 1, 2020 a capacity order was in force in every jurisdiction that had reopened the industry; Arizona's gyms, theaters and water parks were closed (June 29 to August 10, then reopened only on individual attestation to the Department of Health Services); California closed indoor theaters, family entertainment centers, zoos, museums and cardrooms statewide and monitoring-list gyms on July 13 and fixed the Blueprint tiers on August 28; New Jersey's gyms, theaters and indoor amusement were closed (to September 1 and 4); New York's gyms were closed (to August 24 and September 2) and its movie theaters remained closed through the quarter; Michigan's gyms outside Regions 6 and 8 were closed to September 9 and its theaters through the quarter; West Virginia re-prohibited fairs, festivals and amusement parks on July 14 and kept concert halls closed; South Carolina reopened venues only as gatherings capped at fifty percent or 250, with face coverings as an exposure-control condition, from August 3; Pennsylvania capped indoor events at twenty-five and outdoor at 250 from July 16; Allegheny County closed its casino from July 3 to July 10 and capped events at twenty-five indoors and fifty outdoors from July 10 to September 24; Los Angeles County closed indoor gyms and every indoor entertainment venue from July 13-14 and kept them closed through the quarter under the Purple tier; San Diego, Sacramento, Riverside and San Bernardino did the same by county order; New Orleans prohibited indoor live entertainment throughout; Honolulu closed bars from August 8 and re-imposed a stay-at-home order from August 27 to September 23; Anchorage closed bingo halls and theaters from August 3 to 30; Marion County closed every bar and nightclub from July 24 and capped events at 250 or twenty-five percent with seven-day pre-approval; St. Louis County limited youth sports to practice from July 20; Ohio issued mandatory requirements for sports on August 19 and for entertainment venues on August 25 (fifteen percent of fixed seating); Kentucky's venue requirements of June 29 governed; Louisiana moved to Phase Three only on September 11 with arenas at twenty-five percent; Nevada's Directive 033, signed September 30 for October 1, fixed the next quarter's caps; and Florida alone removed its caps, on September 25.¹⁴⁹ Spectators were barred or capped in every professional and collegiate venue in the country (Texas Executive Order GA-28: fifty percent; Colorado, Ex. CO-027; Florida Executive Order 20-123; Nevada's live events closed to the public under Directive 021, Ex. NV-017), and the interstate quarantines of New York (Executive Order 205, June 25), Connecticut, New Jersey, Chicago (July 6), Hawaii and others made every touring company and visiting team a fourteen-day absence.¹⁵⁰ The FFCRA mandate ran through the quarter; the entry proclamations, land-border notices and Title 42 order continued; Proclamation 10052 barred H-1B, L-1 and J-1 entry from June 24; the CDC's eviction moratorium took effect September 4; the No Sail Order continued to October 30.¹⁵¹ On September 30, 2020 capacity orders were in force in every jurisdiction except Florida and the county-driven States (where the counties' orders governed), New Jersey's gyms and indoor amusement stood at twenty-five percent and its theaters at twenty-five percent or 150, New York's gyms at thirty-three percent with its movie theaters closed, Michigan's theaters closed to October 9, California's industry under the Blueprint tiers with Los Angeles County in Purple, and Ohio's venues at fifteen percent of fixed seating.¹⁵²

The facilities (FC) reopened at twenty-five to fifty percent with amenities closed, or stayed closed (New Jersey, New York, Michigan, California's Purple counties, Arizona to August 10); CL prohibited indoors in New York City, capped at ten in most reopening orders and conditioned on cohorts and distancing everywhere; PE dark in New York City, New Jersey (to September 4), Michigan, California's Purple counties and every indoor live venue of Louisiana and New Orleans, and capped at fifteen to fifty percent where open; SP without spectators or at ten to fifty percent, with youth sports practice-only in St. Louis County and prohibited as contact sports in Tennessee; AM closed in California's every tier and West Virginia's fairs and parks, capped elsewhere; CN under the food-service rules of each venue's State (take-out only, seated service, alcohol cut-offs, closing hours); MK cancelled by gathering caps of ten to fifty and permit refusals; HR without consular services for foreign performers and athletes; OP under telework mandates and attestation regimes; WF under the FFCRA mandate, quarantine orders and traveler quarantines; CB under gathering caps, traveler quarantines and, in California, Arizona and the Southwest, renewed stay-at-home directives.¹⁵³

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 capacity, class, amenity and distancing orders of every reopened jurisdiction (Ex. NY-110; Ex. SEC-17-013; Ex. SEC-17-015; Ex. OH-034; South Carolina Executive Order 2020-50; Ex. PA-016; Ex. KY-021; Ex. LA-018), the re-closure orders of Arizona and California (Ex. AZ-022; Ex. AZ-029; the State Public Health Officer's order of July 13, 2020; Ex. SEC-17-016), the continued closure orders of New Jersey, New York and Michigan (Ex. MET-NYC-010; Ex. MI-044; Ex. MI-045 (Executive Order 2020-183, scheduling theaters' reopening for Oct. 9, 2020 and thereby recording their closure through Sept. 30; displaced Oct. 2, 2020)), the county re-closures of California, Pennsylvania, Alaska, Indiana and Hawaii (Ex. MET-LA-009; Ex. MET-SAN-012; Ex. MET-SAC-007; Ex. MET-PIT-004; Ex. AK-073; Ex. MET-IND-022; Ex. MET-HNL-017), the spectator prohibitions and caps (Texas Executive Order GA-28; Ex. CO-027; Florida Executive Order 20-123; Ex. NV-017; Ex. MET-STL-070), the fair and festival prohibitions (Ex. WV-042; Ex. OH-099), the traveler quarantines (Ex. ECO-C-001; Ex. ECO-C-005; Ex. ECO-C-031), the entry proclamations (Ex. FED-211) and the FFCRA mandate (Ex. FED-171), 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 keeping the industry's facilities closed or at a fraction of capacity, its performances dark or seated at a fraction, its seasons without spectators, its fairs and festivals cancelled and its patrons and performers unable to travel.¹⁵⁴

The fourth quarter of 2020

On October 1, 2020 the September 30 regime governed, with New York's cluster zones from October 6, Nevada's Directive 033 from October 1, Wisconsin's Emergency Order #3 from October 8, Michigan's Department of Health and Human Services orders from October 9 and 29, Detroit's epidemic order from October 9 and Massachusetts's Step 2 from October 5 for lower-transmission communities only.¹⁵⁵ Between November 13 and December 26, 2020 thirty-one States and the District re-closed, re-capped or re-tightened the industry, as the layers section states, twenty-two of them and the District by re-closure or capacity order and nine by sport, gathering, spectator or airborne-transmission order: Michigan's theaters, casinos, bowling centers, arcades, group fitness and organized sports closed from November 18; Minnesota's gyms, entertainment and event venues closed and sports paused from November 20 to December 18; Illinois's Tier 3 from November 20 (indoor group fitness, indoor recreation, theaters, museums, casinos and indoor spectator events prohibited; gyms twenty-five percent; gatherings of ten); Washington's indoor fitness, theaters, museums and bowling closed from November 17; Oregon's freeze from November 18 and Extreme-level closures from December 3; California's Regional Stay at Home Order from December 5-6 (all indoor and outdoor recreation, entertainment and live-audience sports closed; Los Angeles County's Temporary Targeted Safer at Home Order from November 30); Pennsylvania's indoor gyms and indoor entertainment closed from December 12; Rhode Island's Pause from November 30; Massachusetts's rollbacks of November 9 and December 13 and its Step 1 rollback of December 26 with venues closed; New Mexico's reset of November 16-30 and Red-county closures from December 2; Colorado's Level Red from November 20 (gyms ten percent; indoor events closed); Nevada's Pause from November 24 (twenty-five percent; tournaments prohibited; casinos twenty-five percent); Kentucky's gyms at thirty-three percent and venues at twenty-five per room from November 20; Delaware's classes of ten and sports pause from December 14; the District's group-class suspension from November 25 and high-contact-sports prohibition from December 11; Virginia's venues at thirty percent or 250 from December 14; Maryland's fitness centers at fifty percent from November 20; North Carolina's gatherings of ten from November 13; Nebraska's twenty-five percent gatherings from November 11; North Dakota's suspension of all youth and adult sports from November 16; Idaho's Modified Stage 2 from November 14; Utah's suspension of extracurriculars from November 9; Tennessee's gatherings of ten from December 20; Texas's fifty percent in high-hospitalization areas (Dallas-Fort Worth from December 3); Louisiana's Modified Phase Two from November 25 with indoor live entertainment prohibited; Mississippi's venue caps from December 11; New Jersey's indoor-sports suspension from December 5; New York's 10:00 p.m. closing from November 13 and orange-zone gym closures from December 14; Montana's twenty-five persons, fifty percent and 10:00 p.m. closing from November 20; West Virginia's face coverings while exercising from November 14 and youth-sports order; Iowa's gathering and two-spectator limits from November 17; Wyoming's caps from December 9; and Anchorage's indoor entertainment closure from December 1.¹⁵⁶ The metros went further: Boston closed gyms, movie theaters, museums, aquariums, bowling, arcades, tours and indoor event spaces from December 16; Cambridge closed Phase III enterprises and held gyms at twenty-five percent from December 26; Chicago capped gyms at twenty-five percent with classes ceased and closed venues to gatherings from November 20 and imposed an 11:00 p.m. business curfew; Philadelphia closed gyms, museums, libraries and theaters from November 20; Baltimore City closed indoor recreation and theaters from December 11; Anne Arundel County suspended organized sports from November 13; Johnson County, Kansas, barred venues over 2,000 from events and prohibited fairs and parades from November 16; Jackson County held gyms and venues to fifty percent from November 20; Denver prohibited spectators at non-professional sports from December 1; Milwaukee held every venue and gym to the lesser of twenty-five percent, one per thirty square feet or ten from October 29; Dane County prohibited every indoor gathering from November 18 to December 15; Marion County capped events at twenty-five percent and made every school virtual from November 30; Shelby County ordered residents home from December 26; New Orleans prohibited indoor live entertainment and dance clubs from November 25 and closed bars indoors on December 31; St. Louis County ordered residents home and held businesses to twenty-five percent from November 17; Honolulu held Tier 2 with no indoor events; Santa Clara prohibited all contact sports from November 30.¹⁵⁷ The federal layer added the Conditional Sailing Order of October 30 and continued the entry proclamations, border notices, eviction moratorium and FFCRA mandate to December 31.¹⁵⁸ On December 31, 2020 re-closures or re-caps were in force in every one of those jurisdictions.¹⁵⁹

The facilities (FC) re-closed in Michigan, Minnesota, Washington, Oregon, California, Pennsylvania, Rhode Island, Boston, Cambridge, Philadelphia, Baltimore and Anchorage, and re-capped at ten to fifty percent in Colorado, Illinois, Nevada, Kentucky, Maryland, Delaware, New York's orange zones, Chicago, Milwaukee, Jackson County and St. Louis County; CL prohibited in Michigan, Illinois, Chicago, the District, Minnesota and Kentucky's gyms and capped at ten in Delaware; PE closed in twenty jurisdictions and capped at twenty to thirty percent in the rest, with indoor live entertainment prohibited in Louisiana, New Orleans, New York's 10:00 p.m. rule and Boston's licensed premises; SP paused in North Dakota, Minnesota, Michigan, New Jersey, Delaware, Utah, the District, Anne Arundel County and Denver, and without spectators or at ten percent elsewhere; AM closed in California's every region, Michigan, Minnesota, Illinois, Washington, Oregon, Boston, Baltimore, Philadelphia and Anchorage, with fairs, festivals, carnivals and parades prohibited in Johnson County and West Virginia; CN closed with the venues and under the 10:00 p.m., 11:00 p.m. and no-indoor-service rules of New York, Chicago, New Orleans and Louisiana; MK cancelled by gathering caps of five to ten; HR without consulates; OP under the telework mandates of Pennsylvania ("unless impossible"), Michigan, Minnesota, Philadelphia and Los Angeles County; WF under the FFCRA mandate to December 31, quarantine orders and school closures; CB under stay-at-home orders in California, New Mexico, St. Louis County, Shelby County and Honolulu and gathering caps everywhere.¹⁶⁰

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-closure and re-cap orders of twenty-two States and the District and the sport, gathering, spectator and airborne-transmission orders of nine more States and Anchorage (Michigan's Pause to Save Lives of Nov. 15, 2020; Ex. MI-061; Ex. MI-062; Ex. MN-032; Ex. MN-034 (issued Dec. 23, 2020 for Jan. 4, 2021); Illinois Executive Order 2020-73; Ex. WA-047; Ex. OR-033; Ex. OR-035; California's Regional Stay at Home Order of Dec. 3, 2020; Ex. PA-028; Ex. PA-022; Ex. RI-029; Ex. RI-031; Ex. MA-037; Ex. MA-039; Ex. MA-040; Ex. NM-039; Ex. NM-041; Colorado's Second Amended Public Health Order 20-36 of Nov. 20, 2020; Ex. NV-030; Ex. NV-050; Kentucky Executive Order 2020-968; Ex. DE-032; Ex. DE-033; Ex. DC-080; Ex. DC-014; Ex. DC-044; Virginia Executive Order 72; Ex. VA-023; Ex. MD-021; Ex. MD-049; Ex. NC-021; Ex. NE-020; Ex. ND-062; Ex. ND-065; Idaho's Modified Stage 2 order of Nov. 13, 2020; Utah Executive Order 2020-73 and State Public Health Order 2020-25; Tennessee Executive Order 70; Texas Executive Order GA-32; Ex. TX-026; Louisiana Proclamation 168 JBE 2020; Mississippi Executive Order 1535; Ex. SEC-17-014; Ex. NY-008; Ex. NY-037; Ex. NY-039; Ex. MT-018; Ex. WV-051; Ex. WV-054; Iowa's Proclamation of Nov. 16, 2020; Ex. IA-033; Ex. WY-038; Ex. AK-074), the metro orders that closed or capped the industry further (Ex. MET-BOS-010; Ex. MET-BOS-029; Ex. MET-CHI-016; Ex. MET-CHI-027; Ex. MET-CHI-053; Ex. MET-PHL-010; Ex. MET-BAL-010; Ex. MET-BAL-065; Ex. MET-KC-061; Ex. MET-KC-038; Ex. MET-DEN-009 (the Jan. 11, 2021 order reciting and replacing Denver's spectator prohibition of Dec. 1, 2020); Ex. MET-MKE-034; Ex. MET-MKE-014; Ex. MET-IND-035; Ex. MET-BNA-071; Ex. MET-MSY-015; Ex. MET-STL-074; Ex. MET-LA-012; Ex. MET-SFO-073; Ex. MET-DET-001), the sports suspensions and spectator caps (Ex. ND-065; Ex. SEC-17-014; Ex. MET-DEN-009; Ex. NV-028; Ex. MD-019; Ex. LA-021), the federal sailing, entry, border, eviction and leave instruments (Ex. FED-031; Ex. FED-200; Ex. FED-022; Ex. FED-170) and the sector regulators' orders (Ex. NV-050; Ex. AGY-ST-GAMING-RACING-063; Ex. AGY-ST-GAMING-RACING-035), 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 closing the industry's facilities, classes, performances, seasons and attractions a second time in thirty-one States and the District and in every major metro, and by capping at ten to fifty percent what they did not close.¹⁶¹

The first quarter of 2021

On January 1, 2021 every winter instrument was in force. The withdrawal that followed was slower than in any other sector: California's Regional Stay at Home Order ran to January 25 and Los Angeles County kept indoor gyms, theaters and family entertainment closed until March 14, reopening gyms at ten percent and theaters at twenty-five percent on March 15; Michigan reopened group fitness on January 16 and indoor dining on February 1, kept venues at twenty percent or one hundred, and kept its orders to June 22; Minnesota reopened indoor venues at twenty-five percent or 150 on January 11 (Executive Order 21-01, effective 11:59 p.m. January 10) and moved to fifty percent or 250 on February 13; Washington's Healthy Washington Phase 1 from January 11 kept indoor entertainment closed and reopened it under phased requirements; Massachusetts returned to Step 2 with venues at fifty percent or 500 on March 1 and admitted twelve percent to stadiums on March 22; Boston kept venues and indoor recreation closed to March 22 and then held venues to fifty percent or 500 with amusement parks and saunas closed; Cambridge kept its rollback to May 6; New York moved theaters statewide to March 5 at twenty-five percent, indoor family entertainment to March 26, indoor fitness classes to March 22 and event venues to thirty-three percent from April 2; New Jersey permitted arenas of 5,000 or more to admit ten percent from March 1 and its indoor sports resumed January 2; Nevada stepped to thirty-five percent on February 15 and fifty percent on March 15 with casinos following by Gaming Control Board notice; Pennsylvania reopened indoor gyms and entertainment on January 4 under the November 27 order's caps; Rhode Island kept venues at twenty-five percent; Ohio raised venues to twenty-five and thirty percent on March 2 and reopened fairs March 11; Connecticut capped indoor events at twenty-five persons until March 19 and then at fifty percent or one hundred; North Carolina raised gyms to fifty percent and movie theaters and venues to thirty percent on February 26 and to seventy-five and fifty percent on March 26; the District eased on March 22; Delaware kept classes at ten and sports paused to January 11, then under caps to May 21; Wyoming lifted its gym rules March 16; Nebraska, Idaho, Mississippi, West Virginia, Louisiana and New Mexico ran their frameworks to February, March and June; Chicago moved indoor recreation to forty percent or fifty in February and fifty percent or fifty with classes of twenty on March 2; Philadelphia's Spring Order of March 1 imposed density and no-eating rules on gyms and theaters and face coverings regardless of vaccination; New Orleans dropped to Modified Phase One on January 8, closed every bar for Carnival week, February 12-17, and moved to seventy-five percent only on March 12; Nashville capped venue spectators at twenty-five to thirty-three percent of ticketed capacity with health-department approval from March 26; Shelby County's second stay-at-home order ran to January 22; Milwaukee's lesser-of rule ran to March 18 and Dane County's ten-person cap to March 9; Marion County's twenty-five percent events and virtual schools ran to January 15 and its caps to July 1; Honolulu remained in Tier 2 to February 24 and Tier 3 with no indoor events thereafter; Denver's spectator prohibition ran to February 4 and its alcohol and league rules to March 10.¹⁶² The instruments ended in Montana (January 15), North Dakota (January 18), Idaho (February 2), Iowa (February 7), Arkansas (February 26), South Carolina (March 1), Mississippi (March 3; arenas April 30), Texas (March 10), Maryland's fitness caps (March 12; venues May 15), Oklahoma (March 12), Wyoming's gyms (March 16; gatherings May 31) and Arizona (March 25).¹⁶³ The federal layer added the conveyance mask order and TSA directives from February 1, the federal workplace mask order and twenty-five percent occupancy cap from January 20-24, the pre-departure testing order from January 26 and Proclamation 10143 from January 26, while Proclamation 10052 barred H-1B, L-1 and J-1 entry to March 31.¹⁶⁴ On March 31, 2021 capacity or gathering orders reaching gyms, theaters or venues were in force in thirty-seven jurisdictions, and every professional and collegiate venue in the country operated under a spectator cap.¹⁶⁵

The facilities (FC) closed in Los Angeles County to March 14 and in Boston to March 22 and capped at ten to fifty percent in thirty-seven jurisdictions; CL prohibited in New York until March 22 and in Michigan until January 16, capped at ten to twenty elsewhere; PE closed in New York City to March 5, in Boston and Cambridge to March 22, in Los Angeles County to March 14 and in Washington's Phase 1 counties, and capped at twenty to fifty percent everywhere else; SP under spectator caps of ten to thirty-three percent everywhere and paused in Delaware to January 11 and New Jersey to January 2; AM closed in California's every region to January 25 and in Los Angeles County to March 14, closed in Boston, Michigan and Minnesota into February and March, and capped elsewhere; CN under the venue caps, closing hours and Carnival closures; MK cancelled by gathering caps of ten to twenty-five; HR without foreign performers and athletes to March 31 and without in-person certification courses; OP under the telework mandates of Pennsylvania (to April 4), Minnesota (to April 14), Philadelphia and Los Angeles County; WF under the conveyance mask order from February 1, quarantine orders and hybrid school orders; CB under gathering caps everywhere and stay-at-home orders in California and Shelby County into January.¹⁶⁶

During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the winter orders in force on January 1 and their stepped successors (California's Regional Stay at Home Order; Ex. MET-LA-013; Ex. MET-LA-014; Ex. MI-063; Ex. MI-064; Ex. MI-067; Ex. MN-035; Ex. MN-036; Ex. MN-037; Ex. WA-056; Ex. WA-107; Ex. MA-044; Ex. MA-045; Ex. MET-BOS-017; Ex. MET-BOS-018; Ex. MET-BOS-033; Ex. NY-042; Ex. NY-043; Ex. SEC-17-026; Ex. NV-032; Ex. PA-022; Ex. OH-044; Ex. OH-103; Ex. CT-099; Ex. CT-100; Ex. NC-026; North Carolina Executive Order 204; Ex. DC-016; Ex. DE-034; Ex. DE-058; Ex. DE-059; Ex. WY-046; Ex. NE-026; Idaho's Stage 2 order as reissued Dec. 30, 2020; Mississippi Executive Order 1549; Ex. WV-056; Ex. LA-028; Ex. NM-047; Ex. CO-038; Ex. CO-039; Ex. CO-057; Ex. MET-CHI-035; Ex. MET-CHI-036; Ex. MET-CHI-037; Ex. MET-CHI-046 (Oak Park); Ex. MET-PHL-012; Ex. MET-PHL-013; Ex. MET-MSY-018; Ex. MET-MSY-020; Ex. MET-MSY-022; Ex. MET-BNA-017; Ex. MET-BNA-019; Ex. MET-BNA-071; Ex. MET-MKE-036; Ex. MET-MKE-016; Ex. MET-HNL-025; Ex. MET-HNL-026; Ex. MET-DEN-009; Ex. MET-DEN-011; Ex. MET-BAL-011; Ex. MET-BAL-005; Ex. MET-BAL-070; Ex. MET-BAL-071), the terminating instruments that fixed the dates on which twelve jurisdictions withdrew (Ex. MT-020; Ex. ND-074; Idaho's Stage 3 Guidelines of Feb. 2, 2021; Iowa's Proclamation of Feb. 5, 2021; Ex. AR-067; Ex. SC-032; Ex. MS-052; Texas Executive Order GA-34; Maryland Order 21-03-09-01; Ex. OK-039; Ex. WY-050; Ex. AZ-036), the federal conveyance, workplace, testing and entry orders (Ex. FED-020; Ex. FED-050; Ex. FED-060; Ex. FED-270; Ex. FED-042; Ex. FED-207; Ex. FED-211) and the sector regulators' notices (Ex. AGY-ST-GAMING-RACING-012; Ex. AGY-ST-GAMING-RACING-013; Ex. AGY-ST-GAMING-RACING-091), 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 keeping the industry's facilities, classes, performances, seasons and attractions closed or capped at ten to fifty percent in thirty-seven jurisdictions on the last day of the quarter and by conditioning every commute, tour and international engagement.¹⁶⁷

The second quarter of 2021

On April 1, 2021 the March 31 regime governed; California permitted live-audience sport and amusement parks from April 1 at fifteen to thirty-five percent; New York's event venues moved to thirty-three percent on April 2; Pennsylvania's gyms moved to seventy-five percent and its events to twenty-five and fifty percent on April 4; Indiana's directives ended April 6.¹⁶⁸ The stepped withdrawal then ran through the quarter: Georgia April 8 (public health emergency to 12:00 a.m. July 1, 2021); Colorado's dial to the counties April 16 (Denver, Tri-County, Jefferson and Boulder dial orders to August and September); West Virginia April 20; Anne Arundel County April 27; Tennessee April 28; Louisiana's face-covering requirement April 28; Utah May 4-14; Cambridge May 6; New Hampshire May 7; Marion County's caps raised May 10 and June 8; Massachusetts's Phase IV Step 2 May 10; Nashville May 13; North Carolina May 14; Chicago's Bridge Phase May 14-18 with vaccinated patrons exempt from caps only where the business verified their status; Baltimore City May 15; Maryland's venues May 15; Milwaukee's Phase 6 May 20 to June 1; Santa Clara County's vaccination-status ascertainment rule May 19 to June 21; New York's percentage caps May 19 and remaining rules June 15; New Jersey's caps May 19, May 28 and June 4; Connecticut May 20; Delaware's occupancy limits May 21 with its tournament rule to July 12; the District May 21 and June 11; Maine May 24; Nebraska May 24; Louisiana's caps May 26; Minnesota's caps May 27 and steps to June 30; Virginia May 28; Montgomery and Prince George's Counties May 28; Massachusetts May 29; Pennsylvania May 31; Wyoming's gathering order May 31; Nevada June 1 and Clark and Washoe Counties' plans June 1; Ohio June 2; Dane County June 2; Philadelphia June 10; Illinois and Cook County June 11; Kentucky June 11; Vermont June 14; California and its counties June 15; Michigan June 22; Washington and Oregon June 30; New Mexico July 1; Rhode Island July 6.¹⁶⁹ On June 30, 2021 statewide caps on this industry remained in force in Washington (to June 30, with the over-10,000 indoor-event rule after), Oregon (to June 30), New Mexico (to July 1) and Hawaii (county tiers, with Honolulu in Tier 4 at gatherings of ten and twenty-five and indoor face coverings); Rhode Island's Executive Order 21-68 ran to July 6; Delaware's tournament and indoor-sport plan-approval rule ran to July 12; California's mega-event vaccination-or-test rule had been in force since June 15; Washington's over-10,000 rule was in force; unvaccinated-patron face-covering rules, one of the exposure-control conditions the reopening orders kept in force, were in force in California, New York, Connecticut, Rhode Island, Washington, New Mexico and Nevada; San Francisco's C19-07y required every business to screen personnel and follow the mega-event rules; Chicago's late-hour liquor premises admitted only vaccinated patrons; Marion County's caps ran to July 1; Denver required its approval of indoor events over 2,000 to July 1; the conveyance mask order, TSA directives, entry proclamations, land-border notices and Conditional Sailing Order were in force; and the OSHA Healthcare Emergency Temporary Standard took effect June 21.¹⁷⁰

The facilities (FC) ran at fifty to seventy-five percent in most jurisdictions until the stepped dates and at twenty-five to fifty percent in Washington, Oregon, New Mexico, Rhode Island and Hawaii to the end of the quarter, with unvaccinated-patron face-covering rules in seven States and vaccination-status ascertainment in Santa Clara County from May 19 to June 21; CL capped at twenty in Chicago until June 11 and at class limits in every capped State; PE at twenty-five to fifty percent through May in the Northeast and Midwest, at fifteen to thirty-five percent in California to June 15, and under the mega-event rule from June 15 and the over-10,000 rule from June 30; SP under spectator caps to the stepped dates and under Delaware's plan-approval rule to July 12; AM at fifteen to thirty-five percent in California to June 15 and capped elsewhere; CN under seated-service and closing-hour rules to the stepped dates and under Chicago's vaccinated-only late-hour rule through the quarter; MK under gathering caps to the stepped dates and the mega-event rules after; HR under the entry proclamations and the vaccination-or-test conditions the industry's part-time staff met in their other employments; OP under Pennsylvania's telework rule to April 4 and Minnesota's to April 14; WF under the conveyance mask order, quarantine orders and hybrid school orders; CB under gathering caps to the stepped dates and mega-event rules after.¹⁷¹

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, class, spectator and gathering orders in force to their stepped expiry between April 6 and July 6, 2021 (Ex. CA-055; Ex. SEC-17-016; Ex. NY-043; Ex. PA-033; Ex. PA-036; Ex. MA-047; Ex. SEC-17-027; Delaware's Twenty-Ninth Modification, § K; Ex. MN-039; Ex. VA-028; Ex. MI-069; Michigan's order of May 14, 2021; Ex. WA-065; Ex. WA-106; Ex. WA-107; Ex. NM-057; Ex. RI-037; Ex. RI-043; Ex. MET-HNL-030; Ex. MET-CHI-039; Ex. MET-CHI-010; Ex. MET-BOS-035; Ex. MET-BOS-061; Ex. MET-MKE-021; Ex. MET-MKE-022; Ex. MET-MKE-064; Ex. MET-MSY-023; Ex. MET-MSY-024; Ex. MET-MSY-025; Ex. MET-DEN-014; Ex. MET-DEN-017; Ex. MET-DEN-019; Ex. MET-DEN-020; Ex. MET-LA-015; Ex. MET-LA-016; Ex. MET-LA-017; Ex. MET-SFO-024; Ex. MET-SFO-008; Ex. MET-SAN-022; Ex. MET-LAS-003; Ex. MET-LAS-005; Ex. MET-LAS-035; Ex. MET-LAS-036; Ex. MET-KC-042; Ex. MET-KC-043; Ex. MET-BAL-072; Ex. MET-BAL-005; Ex. MET-DCM-021; Ex. MET-DCM-046; Ex. MET-PHL-014; Ex. MET-PHL-015; Ex. MET-PHL-016; Ex. MET-PHL-018), the terminating instruments that fixed those dates (Indiana Executive Order 21-09; Georgia Executive Order 03.31.21.03; Ex. CO-051; Ex. WV-063; Ex. TN-032; Ex. UT-043; North Carolina Executive Order 215; Ex. MA-048; New York Executive Orders 202.108 and 202.111; Ex. NJ-050; Connecticut Executive Order 12B; Delaware's Twenty-Eighth Modification; Ex. DC-072; Ex. ME-057; Ex. LA-032; Ex. MN-038; Ex. VA-017; Ex. NV-038; Ex. OH-048; Illinois Executive Order 2021-12; Kentucky Executive Order 2021-386; Vermont's final step of June 14, 2021; California's Beyond the Blueprint order; Michigan's Rescission of Emergency Orders of June 17, 2021; Ex. WA-101; Ex. OR-043; New Mexico's Public Health Order of June 30, 2021; Ex. RI-047), the sector regulators' notices (Ex. AGY-ST-GAMING-RACING-015; Ex. AGY-ST-GAMING-RACING-017; Ex. AGY-ST-GAMING-RACING-037; Ex. AGY-ST-GAMING-RACING-074; Ex. AGY-ST-GAMING-RACING-075; Ex. NV-074), the federal conveyance, entry, border, sailing and workplace orders (Ex. FED-020; Ex. FED-051; Ex. FED-208; Ex. FED-232; Ex. FED-255; Ex. FED-031; Ex. FED-080) and the school, quarantine and traveler orders in force through the quarter, 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 holding the industry's facilities, classes, performances, seasons and attractions to fixed fractions of their capacity until dates the orders themselves set, the last of them after the quarter ended, and by conditioning every large event, every commute and every international engagement.¹⁷²

The third quarter of 2021

The third quarter of 2021 was, for this industry, a quarter of new orders layered on orders that never lapsed. On July 1, 2021 the industry operated under statewide capacity orders in Washington, Oregon, New Mexico and Hawaii, Rhode Island's last order, Delaware's tournament rule, California's mega-event rule, Washington's large-event rule, unvaccinated-patron face-covering rules in seven States, the federal conveyance, entry, border and sailing orders, the OSHA standard, the State emergencies and the quarantine orders of every jurisdiction. Between July 16 and September 30, 2021 Hawaii re-capped the industry statewide; New York City, San Francisco, New Orleans and Honolulu barred the unvaccinated from its doors; Los Angeles County, California, Nevada, Washington and King County conditioned its largest events; eight jurisdictions imposed universal indoor airborne-transmission controls on every person inside it statewide and more than twenty counties and cities did the same; every school in most of the country placed the youth programs that use its buildings under masking and quarantine controls; and the federal government renewed its conveyance directive, extended its border closures and reinstated face-covering requirements in every federal facility. The Service's sentence that no orders were in effect describes a quarter that did not occur.

(A) The Service's premise and what the statute asks

The Service's form letter states:

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.

(B) The instruments in force, one by one

Each instrument below is stated with its issuer, date, operative clause, compliance date, enforcement, status on July 1 and September 30, 2021 and the functions it reached.

B-1. The CDC conveyance mask order

Centers for Disease Control and Prevention, Requirement for Persons To Wear Masks While on Conveyances and at Transportation Hubs, 86 Fed. Reg. 8025, issued January 29, 2021 under 42 U.S.C. § 264, effective 11:59 p.m. February 1, 2021, "until further notice." Operative clause: every person must wear a mask while boarding, disembarking and travelling on any conveyance into or within the United States and at any transportation hub; operators of conveyances and hubs must require masks, refuse boarding to any person not wearing one and disembark any person who refuses. Enforcement: criminal penalties under 42 U.S.C. § 271 and 18 U.S.C. § 3559 and civil penalties under the TSA directives. Status: in force on every day of the quarter. Functions: PE and SP (every touring company, visiting team, official and crew that travelled by air, rail or bus), WF (every employee who commuted by transit), CB (every patron who travelled to a venue by conveyance).¹⁷⁶

B-2. The TSA Security Directives

Transportation Security Administration, Security Directive SD 1582/84-21-01A (surface transportation), announced April 30, 2021 (the directive's face states its effective and expiration dates and no issue date), effective May 12, 2021, expiring September 13, 2021, and SD 1582/84-21-01B, announced August 20, 2021, effective September 14, 2021, expiring January 18, 2022, with the parallel aircraft, airport and foreign-carrier directives, each issued under 49 U.S.C. § 114(l)(2). Operative clause: owners and operators of surface transportation systems, aircraft operators and airports must require masks of every person, refuse transport to those who do not comply and report violations. Enforcement: civil penalties. Status: in force on every day of the quarter, the renewal announced August 20, 2021 falling inside it. Functions: PE, SP, WF, CB.¹⁷⁷

B-3. The entry proclamations and the land-border notices

Proclamation 10143 of January 25, 2021 and Proclamation 10199 of April 30, 2021, issued under 8 U.S.C. § 1182(f), suspending the entry of non-citizens physically present in the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa, India, China and Iran within fourteen days of arrival, in force until Proclamation 10294 lifted them at 12:01 a.m. on November 8, 2021; and the Department of Homeland Security's Notifications of Temporary Travel Restrictions for the Canadian and Mexican land borders, issued under 19 U.S.C. § 1318(b) on June 23, July 22, August 23 and September 22, 2021, each barring non-essential entry by land or ferry for the following month through October 21, 2021. Operative clause: entry suspended; non-essential travel barred. Enforcement: refusal of entry by Customs and Border Protection. Status: in force on every day of the quarter, with three renewals issued inside it. Functions: PE and SP (foreign artists, athletes, tours and crews), MK (international festivals and conventions), CB (cross-border and overseas patrons, the base of every border-region venue and every destination market).¹⁷⁸

B-4. The Title 42, testing and sailing orders

The CDC's order suspending the introduction of certain persons at the land borders, reassessed and continued August 2, 2021; the CDC's amended order of January 25, 2021 requiring a negative pre-departure test of every air passenger arriving from abroad; and the Framework for Conditional Sailing Order of October 30, 2020, in force to November 1, 2021, under which no cruise ship carried passengers without CDC certification and no shore excursion operator, port vendor or destination attraction received cruise passengers until the ships returned in late June 2021 under conditional certificates. Status: in force on every day of the quarter. Functions: AM and PE (destination attractions and shows), CB.¹⁷⁹

B-5. The federal workplace, contractor and OSHA instruments

The Safer Federal Workforce Task Force's Model Safety Principles as revised July 29, 2021 reinstated face-covering requirements in every federal facility in areas of substantial or high transmission from July 28, 2021, one of a set of occupational-health controls that also required onsite contractors to attest to vaccination status or be tested, masked and distanced; Executive Orders 14042 and 14043 of September 9, 2021 directed vaccination of federal employees and of covered contractor workforces, with the contractor determination of September 24, 2021; the OSHA Healthcare Emergency Temporary Standard of June 21, 2021 governed the on-site clinics and athletic-training rooms of arenas, teams and universities staffed by health-care personnel; and OSHA's Revised National Emphasis Program of July 7, 2021 directed inspections of high-hazard workplaces. Status: in force on every day of the quarter (the standard) or from the dates stated. Functions: PE, SP, AM and CN (every food-and-beverage operator, park operator and venue on federal property or under federal contract), HR, WF.¹⁸⁰

B-6. The CDC eviction moratorium

CDC Order of August 3, 2021, Temporary Halt in Residential Evictions in Communities With Substantial or High Transmission, in force August 3 to October 3, 2021 by its terms (ended August 26, 2021, when the Supreme Court vacated the stay of the District Court's judgment setting the order aside), following the extension of June 24, 2021 in force through July 31. Status: in force July 1-31 and August 3-26, 2021. Functions: WF and CB (the tenancies of the industry's staff and members); OP (the leases and landlords of this industry's studios and venues through the parallel local moratoria of Seattle, Boston, Somerville, Los Angeles and Philadelphia). Beside it stood Oregon Executive Order 21-30 (August 16, 2021), extending House Bill 2009's foreclosure moratorium to December 31, 2021 (Ex. OR-050), a stay on the lenders of this industry's venue owners, in force from its date through September 30, 2021.¹⁸¹

B-7. Hawaii Executive Order 21-05

Governor of Hawaii, Executive Order No. 21-05, issued and effective August 10, 2021 under Haw. Rev. Stat. ch. 127A, in force through September 30, 2021 and until superseded November 12, 2021 by Executive Order 21-08 (Ex. HI-030), which relaxed the gathering caps (the statewide caps ended December 1, 2021), and restated as Exhibit F of the Emergency Proclamation of October 1, 2021; with it, the Statewide Face Covering Requirement imposed by the Fifteenth Proclamation of November 16, 2020 (Exhibit J) and carried in every successor proclamation placed every person in the State under airborne-transmission controls (a face covering in every indoor public setting) on every day of the quarter. Operative clause: indoor social gatherings limited to ten persons and outdoor social gatherings to twenty-five; restaurants, bars and gyms and the indoor activities listed with them limited to fifty percent of capacity, with face coverings and distancing. Enforcement: misdemeanor under Haw. Rev. Stat. § 127A-29 (up to $5,000 and one year). Status: not in force July 1; in force August 10 through September 30 and after. Functions: FC (every gym in the State at fifty percent), CL (every class a gathering of ten), PE, SP, AM, CN, MK, CB.¹⁸²

B-8. Nevada Directives 047, 048, 049 and 050

Governor of Nevada, Declaration of Emergency Directive 047, issued July 27, 2021, effective 12:01 a.m. July 30, 2021: airborne-transmission controls, a face covering required of every person, vaccinated or not, in every indoor public space in every county of substantial or high transmission as determined under Directive 048 of August 4, 2021; Directive 049 of August 16, 2021 and Directive 050 of September 2, 2021: a large event or convention of 4,000 or more may operate without face coverings only where every attendee and every staff member shows proof of at least one dose, with the operator's plan filed with the State. Enforcement: misdemeanor under NRS 414.190; licensing. Status: not in force July 1; Directive 047 in force July 30 through September 30 (terminated February 10, 2022); Directives 049 and 050 in force from August 16 and September 2. The Gaming Control Board's Industry Notice 2021-71 (issued July 27, 2021, effective 12:01 a.m. July 30) applied the face-covering rule to every gaming floor. Functions: FC, CL, PE, SP, AM, CN, MK, WF, CB.¹⁸³

B-9. The statewide indoor face-covering and exposure-control orders of Louisiana, Oregon, Illinois, New Mexico and the District

Governor of Louisiana, Proclamation 137 JBE 2021, issued August 2, effective August 4, 2021, renewed by 167 JBE 2021 (effective September 1) and 181 JBE 2021 (effective September 29): workplace infection-prevention and exposure-control requirements, a face covering in every indoor location outside a private residence, with businesses required to enforce. Oregon Health Authority, OAR 333-019-1025, temporary rule filed August 11, effective August 13, 2021 indoors and August 27, 2021 in crowded outdoor spaces: every person in an indoor space open to the public and every business responsible for compliance; civil penalties under ORS 431A.010. Governor of Illinois, Executive Order 2021-20, issued August 26, 2021, face coverings from August 30, 2021, re-issued as Executive Orders 2021-22 (September 3) and 2021-23 (September 17): every person over two in an indoor public place. New Mexico Department of Health, Public Health Emergency Order of August 17, 2021, face coverings for all from August 20, 2021, extended September 15, 2021: every indoor public setting; civil penalty of $5,000 per violation under NMSA 12-10A-19. Mayor of the District of Columbia, Mayor's Order 2021-097, issued July 29, effective 5:00 a.m. July 31, 2021: a face covering in every indoor public setting regardless of vaccination status; $1,000 fine. Status: none in force July 1; each in force from its date through September 30, 2021. Functions: FC, CL, PE, AM, CN, WF (airborne-transmission controls on every floor: every instructor, usher and operator masked while working; every class taught masked; every performance attended masked).¹⁸⁴

B-10. Washington's Orders 20-03.4 and 20-03.5 and Proclamations 20-25.15 and 20-25.17

Secretary of Health of Washington, Order 20-03.4, issued August 19, effective August 23, 2021: universal indoor airborne-transmission controls, a face covering required of every person in every indoor public space regardless of vaccination status; Order 20-03.5 and the Governor's Proclamation 20-25.17, issued September 13, 2021: face coverings at every outdoor event of 500 or more; Proclamation 20-25.15 of August 20, 2021 (effective August 23) and 20-25.16 of September 3, 2021 continuing the Washington Ready rules under which indoor events over 10,000 operated at seventy-five percent unless vaccination was verified; the Spectator Events COVID-19 Requirements in successive versions; Proclamations 21-14 and 21-14.1 of August 9 and 20, 2021 requiring vaccination of health-care and State workers by October 18, 2021. Enforcement: gross misdemeanor under RCW 70.05.120 and RCW 43.06.220. Status: the Washington Ready over-10,000 rule in force July 1; the face-covering orders from August 23 and September 13 through September 30. Functions: FC, CL, PE, SP (every stadium and arena event of 500 under face-covering controls; every event over 10,000 capped or verified), AM, CN, MK, WF.¹⁸⁵

B-11. California's Beyond the Blueprint order and the Cal/OSHA standard

California Department of Public Health, State Public Health Officer Order of June 11, 2021, effective June 15, 2021: vaccination verification or a negative test required of every attendee at indoor mega-events of 5,000 or more, recommended at outdoor mega-events of 10,000 or more; indoor threshold lowered to 1,000 effective September 20, 2021; the occupational-health and airborne-transmission controls of the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards, readopted June 17, 2021, in every workplace, of which face coverings were one; the Department's face-covering guidance of July 28, 2021, recommending universal indoor face coverings and restating the requirement for unvaccinated persons indoors (guidance, described as such); the health-care and school-worker vaccination orders of July 26, August 5 and August 11, 2021. Enforcement: Health & Safety Code § 120295; Labor Code § 6317. Status: the mega-event rule and the standard in force on every day of the quarter; the threshold change inside it. Functions: PE, SP, MK (every concert, game and festival of 5,000, then 1,000, indoors), CN, WF, CB.¹⁸⁶

B-12. The other State instruments of the quarter

Rhode Island's Executive Order 21-68 kept its last capacity provisions in force to July 6, 2021, when Executive Order 21-76 terminated them; Delaware's Twenty-Ninth Modification, § K, required Division of Public Health approval of every tournament and indoor sport to 12:01 a.m. July 13, 2021; New Mexico's Public Health Emergency Order of June 30, 2021 ran to July 1 and its successors of July 30 and August 17 followed; Oregon's Executive Order 21-15 lifted capacity limits at 12:01 a.m. June 30 and its rules of August followed; Washington's phase requirements ran to June 30 and Washington Ready from that day; New York's Subpart 66-3 kept its face-covering requirement on unvaccinated patrons to August 27, 2021, when the Commissioner's determinations under 10 NYCRR 2.60 and 2.61 imposed face-covering requirements in every school and health-care setting, the Public Health and Health Planning Council's 10 NYCRR 2.61 of August 26 required vaccination of every health-care worker, 10 NYCRR 2.62 of September 2 required testing, the HERO Act's airborne-infectious-disease standard required every private employer in the State to adopt a plan by August 5, 2021 and activate it on September 6, 2021, and the Governor's Executive Order 4 of September 27, 2021 declared a new disaster emergency; Connecticut's Executive Orders 13A (August 5), 13B (August 6), 13F (September 3), 13G (September 10) and 14A (September 30) and the Department of Public Health's universal-masking order of August 7, 2021 governed schools, State employees, health-care workers and child care; New Jersey's Executive Orders 251 (August 6, effective August 9: school face coverings), 252 (August 6: health-care vaccination or testing from September 7), 253 (August 23: school staff from October 18) and 264 (September 20: child-care face coverings from September 24) and P.L. 2021, c. 103 governed; Massachusetts's Public Health Emergency Order 2021-4 (August 4), Executive Order 595 (August 19), the DESE face-covering requirement (August 25) and 105 CMR 159 (September 8) governed long-term care, State employees, schools and home-care staff; Pennsylvania's Act 21 and Act 73 preserved its regulatory suspensions and its school face-covering order took effect September 7, 2021; Kentucky's Executive Order 2021-585 of August 10, 2021 and emergency regulations of August 12 imposed face-covering requirements in every school and child-care facility until the Supreme Court's decision of August 21 and the legislature's joint resolution of September 7; Virginia's Executive Directive 18 (August 5) and the Health Commissioner's school order (August 12) governed, and the Department of Labor and Industry's permanent infectious-disease standard, 16VAC25-220 (adopted January 13, effective January 27, 2021; amended effective September 8, 2021), governed every Virginia workplace through the quarter; Alabama declared a new state of emergency on August 13, 2021; Colorado's Public Health Order 20-38 was renewed July 1, August 1 and September 1 and its health-care vaccination rule adopted August 30; Georgia's Economic Recovery emergency, declared June 30, 2021 (Ex. GA-041), was renewed July 22, August 19 and September 20 (Ex. GA-059; Ex. GA-060; Ex. GA-046), and the Governor deployed the Guard to hospitals and suspended hours-of-service rules on August 25 and 30 (Ex. GA-044; Ex. GA-045) under the mandatory mitigation duty of Executive Order 08.19.21.03; Texas's GA-38 of July 29 and GA-39 of August 25, 2021 fixed the terms on which every Texas venue operated and the Supreme Court of Texas's Thirty-Ninth and Fortieth Emergency Orders of July 19 governed its courts; Arizona's Executive Order 2021-16 of July 2 and 2021-18 of August 16, 2021 governed; Arkansas's Executive Order 21-14 of July 29, 2021 declared a new emergency; Tennessee's Executive Orders 82 (July 30), 83 (August 6) and 84 (August 16) governed, and Executive Order 88, signed September 30 for October 5, extended them; Missouri's Executive Order 21-09 of August 27 ended its emergency on August 31, 2021; Nebraska's Executive Order 21-12 of August 26, Indiana's Control Measures under 410 IAC 1 (July 19) and Executive Order 21-24 (September 1), Montana's emergency rule of August 31, Idaho's Executive Order 2021-11 of August 31 and activation of crisis standards of care on September 7, Alaska's crisis standards of September 21, New Mexico's Executive Orders 2021-046, 2021-049 and 2021-054, Maryland's Department of Health directives of August 5, 18 and September 8 and Judiciary orders of August 6, 9 and 20, Maine's emergency rule of August 12 and court order reinstating face coverings August 16, Vermont's PG-13 and Administrative Order 49 amendments of July 6 and September 1, and the Kansas quarantine mandate governed their States' health-care, school, court and workforce settings through the quarter. Every face-covering requirement named in this paragraph is one of the airborne-transmission controls the issuing authority imposed on the schools, health-care settings, courts and workplaces it governs, beside the vaccination, testing and quarantine requirements this paragraph records. Every one of these is an order of an appropriate governmental authority limiting commerce, travel or group meetings, and every one reached this industry's workforce, its venues or the school buildings its programs use.¹⁸⁷

B-13. Key to NYC

Mayor of the City of New York, Emergency Executive Order No. 225, issued August 16, 2021 under New York Executive Law § 24 and the New York City Charter, effective August 17, 2021 (section 11), with penalties effective September 13, 2021 (section 9), restated in full by Emergency Executive Order 228, section 4 (August 25), Emergency Executive Order 239 (September 14) and Emergency Executive Order 250 (September 24, 2021). Operative clause: "a covered entity shall not permit a patron, full- or part-time employee, intern, volunteer, or contractor to enter a covered premises without displaying proof of vaccination and identification," the covered entities being indoor dining, indoor fitness (gyms, fitness centers, fitness classes, pools, indoor studios and dance studios) and indoor entertainment and certain meeting spaces (movie theaters, music and concert venues, museums, aquariums and zoos, professional sports arenas, indoor stadiums, convention centers, exhibition halls, performing arts theaters, bowling alleys, arcades, indoor play areas, pool and billiard halls, recreational game centers, adult entertainment and indoor event venues); every covered entity must post a sign and maintain a written record of its verification protocol. Compliance: August 17, 2021; inspections and penalties from September 13. Enforcement: $1,000 for a first violation, $2,000 for a second and $5,000 for each thereafter, by the Department of Health and Mental Hygiene, the Police Department, the Sheriff and the Department of Buildings. Status: not in force July 1; in force August 17 through September 30, 2021 and after. Functions: FC, CL, PE, SP, AM, CN, OP, WF (every employee and contractor), CB (every patron). The Department of Health and Mental Hygiene's orders of the same quarter required vaccination or weekly testing of every public health-care and congregate-setting worker (July 21 and August 10), vaccination of every Department of Education employee, contractor and visitor by September 27 and then October 1, 2021 (August 24 and September 15 and 28), vaccination of every contracted child-care and after-school program staff member by September 27 (September 12) and vaccination of every student participating in the designated extracurricular sports, first dose by September 27, 2021 (September 15); the City's emergency was renewed on July 26, August 25 and September 24, 2021.¹⁸⁸

B-14. Honolulu's Safe Access O'ahu and Safe O'ahu Response Plan

Mayor of the City and County of Honolulu, Emergency Order No. 2021-11, issued August 30, effective September 13, 2021, with the Governor's approval under Haw. Rev. Stat. § 127A-25: every patron, employee and contractor of a restaurant, bar, indoor gym or fitness facility, indoor attraction, theater or other covered entity must show proof of full vaccination or a negative test within 48 hours; Emergency Order No. 2021-10 of August 23, 2021 aligning the island's gathering, restaurant, bar and gym limits with Executive Order 21-05; Proclamation and Emergency Order No. 2021-13, issued September 17, effective September 22 through October 19, 2021, with its Exhibit B: Indoor Events and Outdoor Events I, II and III closed; social gatherings above ten indoors and twenty-five outdoors prohibited; restaurants and bars at fifty percent, seated, with a 10:00 p.m. liquor cutoff; Safe Access O'ahu continued. Enforcement: misdemeanor under Haw. Rev. Stat. § 127A-29. Status: Tier 4 (gatherings of ten and twenty-five) in force July 1; Tier 5 from July 8; the August 23 cutback, the September 13 entry rule and the September 22 event closures inside the quarter; all in force September 30. Maui's Public Health Emergency Rules ran throughout and its Safer Outside rules (vaccination or test for restaurants, bars and gyms) took effect September 15, 2021; Kauai's Rule 26 followed in September. Functions: FC, CL, PE, SP, AM, CN, MK, WF, CB.¹⁸⁹

B-15. San Francisco's Order C19-07y and the Bay Area face-covering orders

Health Officer of the City and County of San Francisco, Order No. C19-07y (Safer Return Together), effective June 15, 2021, requiring every business to screen personnel, follow the mega-event rules and, in designated settings, ascertain personnel vaccination status; update of August 2, 2021, effective 12:01 a.m. August 3: universal indoor airborne-transmission controls, a face covering for every person regardless of vaccination status; update of August 12, 2021: from August 20, 2021 every indoor gym, recreation facility and indoor entertainment venue may admit only patrons who show proof of full vaccination, and by October 13, 2021 may employ only vaccinated personnel; updates of August 24 and September 10, 2021 continuing. The Health Officers of Alameda, Contra Costa, Marin, San Mateo, Santa Clara and Sonoma Counties and the City of Berkeley issued parallel face-covering orders effective August 3, 2021 that "require all individuals, regardless of vaccination status, to wear face coverings when indoors in public settings," and under which "businesses are required to implement the indoor face covering order"; Marin's order named theaters, family entertainment centers and conference centers. Enforcement: misdemeanor under Health & Safety Code § 120295; administrative penalties. Status: C19-07y in force July 1; the face-covering orders from August 3; the vaccination-proof rule from August 20 through September 30. Functions: FC, CL, PE, AM, CN, WF, CB.¹⁹⁰

B-16. New Orleans's vaccination-or-test rule and face-covering mandate

City of New Orleans Health Department, COVID-19 Reopening Guidelines of July 31, 2021, with the Public Health Advisory of the same date, effective 6:00 a.m. July 31, 2021: workplace infection-prevention and exposure-control requirements, every person over two masked in every indoor space outside the household and every business required to exclude symptomatic workers and post its policies. Guidelines of August 13, 2021, with the Public Health Advisory of August 12, effective 6:00 a.m. August 16, 2021, enforcement from August 23: proof of vaccination or a negative PCR test within 72 hours for entry to indoor dining, bars, breweries, gyms, fitness classes, indoor sports venues, concert halls, event spaces, bowling alleys, arcades, casinos and indoor amusement; continued October 29, 2021. Executive Order LC 21-05 of August 19, 2021: City employees and public-facing contractor employees vaccinated or tested from August 30. Enforcement: La. R.S. 29:727 ($500 and six months); license suspension. Status: the May 28, 2021 guidelines (gathering caps of 250 indoors and 500 outdoors; large events conditioned on masking or vaccination-or-test proof; mandatory safety requirements for every business) in force July 1; the face-covering mandate from July 31; the entry rule from August 16 through September 30 and after. Jefferson Parish imposed the same airborne-transmission controls in every indoor space by Proclamation 13 CLS 2021 from August 4, 2021 and in its courts from July 22 and August 2; East Baton Rouge imposed them in its buildings from July 30 and its schools from August 3. Functions: FC, CL, PE, SP, AM, CN, MK, WF, CB.¹⁹¹

B-17. The Los Angeles County and Pasadena face-covering and mega-event orders

Los Angeles County Health Officer, Responding Together at Work and in the Community, Beyond the Blueprint, Substantial Transmission (July 16, 2021, effective 11:59 p.m. July 17): universal indoor airborne-transmission controls, a face covering for every person in every indoor public setting and business regardless of vaccination status, with the City of Los Angeles, Long Beach and Pasadena (July 22) following by their own orders; High Transmission order of August 16 (effective August 19) (Ex. MET-LA-019), carrying the County's face-covering and outdoor mega-event terms; Pasadena Health Officer, Order for Wearing of Face Masks at Outdoor Mega-Events (issued August 18, effective 12:01 a.m. August 20, 2021) (Ex. MET-LA-054): face coverings at every outdoor event of 10,000 or more, and Order Requiring Vaccination or Pre-Event Negative Test for Indoor Mega-Events with 1,000 or More Attendees (issued August 26, effective 12:01 a.m. September 15, 2021) (Ex. MET-LA-056), the City of Pasadena's independent health jurisdiction within the County paralleling the County's rules; Los Angeles County Health Officer, Responding Together, High Transmission (issued September 17, 2021; effective 11:59 p.m. October 7, 2021, after the quarter) (Ex. MET-LA-020): proof of vaccination for every patron of an outdoor mega-event and every indoor bar, brewery, winery, nightclub and lounge, treated only as an order issued inside the quarter whose compelled preparation began on issuance; Health Care Worker Vaccination Requirement (August 12, compliance September 30, 2021); the Superior Court's face-covering order of June 28, 2021. Enforcement: Health & Safety Code § 120295; Los Angeles County Code § 11.02.080. Status: the June 15 order, the quarantine and isolation orders and the Court's order in force July 1; the face-covering orders from July 17; the County's and Pasadena's mega-event orders from August 19-20 and September 15; the October 7 order issued inside the quarter but not in force in it. Functions: FC, CL, PE, SP, AM, CN, MK, WF, CB.¹⁹²

B-18. King County's face-covering and vaccination-verification orders

King County Local Health Officer, Outdoor and Indoor Masking Orders, issued September 2, effective September 7, 2021 under RCW 70.05.070 and WAC 246-100-036: airborne-transmission controls, a face covering in every indoor public space and at every outdoor event of 500 or more; Verification of Vaccination Order, issued September 16, 2021 "effective immediately," with the entry requirement effective October 25, 2021: proof of full vaccination or a negative test within 72 hours for entry to every indoor restaurant, bar, gym, theater, museum, arena, exhibition hall and convention center and every outdoor event of 500 or more, for six months, with no medical or religious exemption; Seattle Mayoral Directive 9 (August 9) and the King County Executive's order (August 10) requiring vaccination of every City and County employee by October 18, 2021. Enforcement: RCW 70.05.120. Status: the Seattle civil emergency, the isolation order and the State rules in force July 1; the face-covering order from September 7; the verification order issued September 16 and compelling preparation from that day. Functions: FC, CL, PE, SP, AM, CN, MK, WF, CB.¹⁹³

B-19. The local face-covering and exposure-control orders inside every facility

Between July 26 and September 17, 2021 the following authorities imposed airborne-transmission controls, a face covering in every indoor public space or in the public buildings, courts and schools they govern, in their jurisdictions; every general indoor order reached every gym, studio, theater, museum, bowling center, arcade and food and beverage stand within it, and every court, public-building and school order reached the premises it names, in which this industry's permits are issued, its contracts enforced and its youth programs housed: St. Louis City (Health Commissioner's Order No. 1 (2021), effective 12:01 a.m. July 26, continued by Order No. 2 from its Board approval after August 30) and St. Louis County (Face Covering Order, effective 8:00 a.m. July 26; enforcement restrained August 3 and enjoined August 20); Sacramento County (July 30, para. 7 reaching mega-events) and Yolo County; Kansas City (Order 21-01 effective August 2, then Ordinances 210694 and 210853 of August 19 and September 23), Jackson County (Health Order of August 6, effective August 9, and Resolution 20749 of August 30), Johnson County, Kansas (Board of Health Order 001-21, effective August 9) and the Unified Government of Wyandotte County (August 5-6, extended September 9); Louisville (Metro buildings and vehicles from August 2); Montgomery County, Maryland (Board of Health Regulation Res. 19-975, triggered August 7) and Prince George's County (Executive Order 18-2021, August 5, and 21-2021, September 30); Baltimore City (the Health Commissioner's Updated Directive and Order for Face Coverings, dated August 10, 2021 and effective immediately); Oak Park (August 6), Chicago (Public Health Order 2021-1, August 20) and Cook County (Order 2021-10, August 23); Durham (August 9), Orange County, North Carolina (August 11), Raleigh (August 13, naming "restaurants, bars, gyms, fitness centers and public transit"), Wake County (August 16) and Charlotte-Mecklenburg (August 18); Philadelphia (August 12, with outdoor events of 1,000 masked or vaccinated-only); Tucson (August 13); Dane County (August 19 and September 10); Savannah (July 26: guided tours and City buildings; August 24: face coverings and no group over fifty on City property) and Atlanta (July 28: face coverings in all indoor public places and gatherings on City property; Executive Order of July 28, 2021, Ex. MET-ATL-063); Boston (August 27), Somerville (August 20), Brookline (August 27), Cambridge (September 3) and Worcester (August 12 and September 7); Boulder County (Public Health Order 2021-08, effective September 3, after its school and youth-setting order of August 10), with the Denver, Tri-County and Jefferson County school orders of August 17 to September 1; Columbus (September 10), Bexley (September 10) and Dayton (September 17); Juneau (July 30: gyms at half capacity, indoor gatherings of fifty); Iowa City (August 19); Lincoln-Lancaster County (Directed Health Measure effective August 26, 2021, Ex. NE-089: "everyone two and older regardless of vaccination status"); Birmingham (July 30 and September 27-29); Jackson, Mississippi; Richland County, South Carolina (September 15); Salt Lake City (City buildings, July 28) and Salt Lake County's K-6 order of August 11 (terminated August 12); Clark County, Nevada (county employees and casino, mall and grocery workers, July 19-22, superseded by Directive 047); Shelby County (Health Orders 25 and 26, August and September); Harris County (county buildings from August 17; schools from August 12); Bexar County (county buildings and schools from August 10-11); Dallas County (public settings from August 11); the Fifth Judicial District of Pennsylvania (August 10), Maricopa County's courts (August 9), the Eighth Judicial District of Nevada (July 19), Hamilton County's courts (August 11), Franklin County's courts (August 5-6), Harris County's courts (August 12), the Ninth Judicial Circuit of Florida (August 23), Utah's courts (July 30), Minnesota's courts (July 30), Hawaii's courts (August 16), Rhode Island's courts (August 13), South Carolina's courts (July 30 and August 27), Iowa's courts (August 27), the 24th Judicial District of Louisiana (July 22 and August 2), Riverside's courts and the Los Angeles Superior Court. Each is an order of an authority with power over the premises it reached; each general indoor order imposed workplace infection-prevention and exposure-control requirements on every facility within it and compelled the facility to mask its staff, mask its patrons, post the rule and refuse entry to those who would not comply; and each court, public-building and school order imposed the same controls on the premises it names. Status: none in force July 1 except the courts' continuing orders; each in force from its date through September 30, 2021 except where stated. Functions: FC, CL, PE, AM, CN, WF, CB.¹⁹⁴

B-20. The vaccination-or-test orders on the industry's part-time workforce

The health-care, school, State-employee and municipal-employee vaccination-or-test orders of the quarter, catalogued in the layers section, conditioned the employment of the athletic trainers, school coaches, municipal recreation staff, university instructors and hospital-employed part-timers who staff this industry's leagues, camps, rinks and venues: California (July 26, August 5 and August 11), New York (August 26), New Jersey (August 6 and 23), Connecticut (August 5, 6 and 19), Massachusetts (August 4, 13 and 19), Maine (August 12), Oregon (August 5, 16 and 25), Washington (August 9 and 20), Rhode Island (August 17), Delaware (September 10), Colorado (August 30), Maryland (August 5, 18 and September 8), Minnesota (August 11), New Mexico (July 30, August 16 and September 15), Hawaii (August 5, September 1 and 13), the District (August 16 and September 20), Virginia (August 5), Illinois (September 3), Kentucky, Vermont and the cities of New York, Denver, Los Angeles, New Orleans, Boston, Seattle, Philadelphia, Tampa, Columbus and Minneapolis and the counties of King, Los Angeles, Pasadena, Marin, Contra Costa, Prince George's and Jackson. Status: from the dates stated through September 30, 2021. Functions: HR, WF, SP, CL.¹⁹⁵

B-21. The school masking and quarantine orders of the 2021-22 year

The school orders catalogued in the layers section governed every gymnasium, field, pool and program building in which this industry's youth leagues, camps, clinics and swim programs operate and every coach, instructor and part-time employee who also worked in a school: California, Illinois, Louisiana, New Mexico, Oregon, Washington, New Jersey, New York, Connecticut, Delaware, the District, Hawaii, Kentucky, Pennsylvania, Nevada, Virginia, Massachusetts, Rhode Island, Maryland and North Carolina by statewide instrument; Harris, Bexar, Oakland, Wayne, Ottawa, Kalamazoo, Genesee and Berrien Counties, Denver, Boulder, Jefferson and the Tri-County counties, Shelby County, East Baton Rouge, Worcester, Boise and the school districts of New York City, Chicago, Los Angeles, Houston, Philadelphia and Detroit by local instrument. The quarantine rules of those orders removed every exposed player, coach and instructor from the field for seven to fourteen days. Status: from the dates stated (August 2 through September 7, 2021) through September 30 and the school year. Functions: SP, CL, HR, WF, CB.¹⁹⁶

B-22. The quarantine and isolation orders

The blanket isolation and quarantine orders of every State and county (San Diego County's Isolation Order of December 24, 2020 and Quarantine Order as revised July 22, 2021: every unvaccinated close contact confined ten to fourteen days; Sacramento County's Summary Isolation and Quarantine Orders; Allegheny County Health Department, Isolation and Quarantine Basics (updated August 24, 2021), stating the isolation and quarantine periods the Department imposed as the county's local health authority under 35 P.S. § 521.5 and 28 Pa. Code § 27.60: ten days "regardless of your vaccination status"; Kansas's travel and exposure quarantine mandate; King County's isolation order) removed exposed instructors, athletes, performers and staff from every facility for the quarantine period. Status: in force on every day of the quarter. Functions: WF, SP, CL, PE.¹⁹⁷

B-23. The State emergencies

The emergency declarations of every State, renewed through the quarter in twenty-five States as of September 21, 2021 (Kaiser Family Foundation count) and newly declared in Alabama (August 13), Arkansas (July 29), New York (September 27), Orange County, Florida (July 28) and St. Louis (July 23), are the predicates on which every instrument above rests; they are treated as predicates, and the instruments issued under them as the orders.¹⁹⁸

B-24. The sector regulators' instruments of the quarter

The Louisiana Gaming Control Board's Emergency Order No. 27 of August 4, 2021 (occupational-health and airborne-transmission controls: a face covering for every employee and patron of every licensed floor), No. 28 of August 12 and No. 29 of September 22, 2021; the Nevada Gaming Control Board's Industry Notice 2021-71 (issued July 27, 2021, effective 12:01 a.m. July 30); New Mexico's proof-of-vaccination rule for every State Fair entrant, September 9-19, 2021; the National Park Service's day-use reservation requirement at Yosemite to September 30, 2021 (announced by the Park Service and cited as context, not as an order); Oregon's and Washington's agricultural workplace rules governing fairgrounds; the interscholastic bodies' rules under the school orders; and New York City's extracurricular sport order. Status: from the dates stated through September 30. Functions: AM, CN, PE, SP, MK.¹⁹⁹

(C) How they reached the functions

The instruments of subpart (B) reached the eleven functions as follows. FC: every gym in Hawaii at fifty percent from August 10; every gym in New York City, San Francisco, New Orleans and O'ahu admitting only the vaccinated or tested from August 17, 20, 16 and September 13; every gym in Louisiana, Oregon, Illinois, New Mexico, the District, Nevada's counties, Washington and the more than twenty local jurisdictions of B-19 placing every member on its floor under the airborne-transmission controls of B-8, B-9, B-10 and B-19 (the face-covering controls, as this subpart calls them) from July 26 onward; every gym in Juneau at half capacity. CL: every class in Hawaii a gathering of ten; every indoor class in New York City and New Orleans closed to the unvaccinated; every class taught under face-covering controls in the face-covering jurisdictions; every school-based class, camp and clinic under the school orders. PE: every theater, cinema, museum and venue in New York City, San Francisco, New Orleans and O'ahu closed to the unvaccinated; every indoor event on O'ahu closed from September 22; every indoor mega-event in California of 5,000, then 1,000, and every outdoor mega-event in Los Angeles County conditioned; every outdoor event of 500 in Washington under face-covering controls from September 13 and every indoor event over 10,000 capped or verified from June 30; every face-covering exemption for an event of 4,000 in Nevada conditioned on universal vaccination proof; every venue in the face-covering jurisdictions under those controls; every touring company under the conveyance order and every foreign artist behind the entry proclamations. SP: every arena and stadium event under the New York City, California, Los Angeles County, Nevada, Washington and King County rules; every youth league in a school building under the school orders; every designated extracurricular sport in New York City under the vaccination order; every exposed player under quarantine; every visiting team under the conveyance order. AM: every indoor attraction, bowling alley and arcade in New York City, New Orleans and O'ahu closed to the unvaccinated; every State Fair entrant in New Mexico verified; every amusement facility in the face-covering jurisdictions under those controls; every destination attraction without cruise passengers until late June and without foreign visitors through the quarter. CN: every food and beverage stand and venue bar in the face-covering jurisdictions under those controls; every venue bar in New York City and New Orleans closed to the unvaccinated; every Honolulu bar at fifty percent, seated, with a 10:00 p.m. liquor cutoff from September 22; every Louisiana and Nevada casino floor under the gaming regulators' occupational-health and airborne-transmission controls. MK: every gathering in Hawaii capped at ten and twenty-five; every gathering over fifty on Savannah City property barred; every mega-event and large event conditioned; every international show behind the proclamations. HR: every certification, background check and visa under the offices' and consulates' rules; every part-time employee under the vaccination-or-test orders of B-20. OP: every covered entity in New York City, San Francisco, New Orleans and O'ahu compelled to write, post and administer a verification protocol; every business in the face-covering jurisdictions compelled to post and enforce; every New York employer compelled to adopt and activate a HERO Act plan. WF: every employee under face-covering controls at work in the face-covering jurisdictions, verified in the vaccination-proof jurisdictions, quarantined when exposed, under the conveyance order on every commute and conditioned in every second job. CB: every patron placed under face-covering controls, verified, capped or barred by the instruments above.²⁰⁰

(D) The continuing suspension

The clause asks whether the operation was "fully or partially suspended during the calendar quarter due to orders." The phrase "during the calendar quarter" modifies "suspended," and Congress did not write "orders in effect during the calendar quarter."²⁰¹ Tri-State defines a suspension to include a "delay" and holds that "due to" is but-for causation.²⁰² The Notice's Q&A-22 makes an employer suspended for part of a quarter eligible for the whole quarter, and Q&A-16 treats a "significant delay" in moving between modes of operation as itself "a partial suspension during that transition period," offering its two-week figure only "for example."²⁰³ Four pathways carry the suspension into the third quarter of 2021, each independent of the others. First, the orders still in force: subpart (B) lists them, and each is an order limiting commerce, travel or group meetings in force on some day between July 1 and September 30, 2021. Second, the orders whose own terms ran into the quarter: Rhode Island's to July 6, Delaware's to July 12, Marion County's to July 1, New Mexico's to July 1, Washington's and Oregon's to June 30 with their successors from that day, Denver's to July 1, and every school order of the 2020-21 year to the end of that year. Third, the restoration arithmetic from the orders' own steps. A gym in Los Angeles County was ordered closed on March 16, 2020, reopened June 12, closed again July 13, 2020, reopened at ten percent on March 15, 2021, at twenty-five percent on April 5 and fifty percent on May 6, and released from its cap on June 15, 2021; its membership, class schedule and staff roster on July 1, 2021 were the product of fifteen months of orders, and the order that released it sixteen days earlier had not restored them. A movie theater in New York City was ordered dark on March 16, 2020 and permitted twenty-five percent or fifty per screen on March 5, 2021; a performance venue in the City was permitted thirty-three percent on April 2, 2021; both were released from percentage caps on May 19, 2021 (Ex. NY-042; Ex. NY-043; Executive Order 202.108); neither could program a season, rehire a crew or sell a subscription in the six weeks between May 19 and July 1, and on August 17 each was ordered to verify every patron. A youth league in Michigan was suspended November 18, 2020, permitted non-contact play from January 16, 2021 and contact play with testing from February 8 under a twenty-percent venue cap, released June 22, 2021 and placed under the school mask and quarantine orders of August 2021; its summer season was the one the winter orders had cancelled the registration for. An amusement park in California was closed by every Blueprint tier from August 28, 2020 to April 1, 2021, permitted fifteen to thirty-five percent from April 1 and released June 15, 2021 under a mega-event rule; its 2021 season opened on the staffing the orders permitted it to hire in April. A festival promoter whose 2020 and April 2021 events were cancelled by county order (Coachella and Stagecoach) had no event to hold in the third quarter of 2021 and a calendar fixed by the orders. An operation the orders had held at zero, ten, twenty-five and fifty percent for fifteen months was not a normal operation on July 1, 2021; the orders' own step dates fix the arithmetic, and the interconnected-economy section states it in full. Fourth, the counterparty and workforce orders treated as orders: the school, quarantine, transit, entry and vaccination-or-test instruments of subpart (B) limited the commerce, travel and group meetings on which every function of this industry depends, and the operation delayed or interrupted because of them was suspended due to them. None of these pathways requires this analysis to say that an expired order suspended anyone by its own force in the third quarter of 2021; each rests on orders in force during the quarter or on a suspension that existed during the quarter because of orders.²⁰⁴

(E) The Service's grounds for the quarter, answered

The Service's grounds for the quarter are answered in turn. That no orders were in effect: subpart (B) names more than sixty. That the orders had lifted before the quarter: the Hawaii, New York City, San Francisco, New Orleans, Honolulu, Los Angeles County, Nevada, Washington, King County, Louisiana, Oregon, Illinois, New Mexico and District instruments were issued inside the quarter, and the federal conveyance, entry, border and sailing instruments were never lifted. That face coverings are a modification with a nominal effect: the masks-and-aisles sentence addresses "[m]odifications altering customer behavior," and the face-covering orders of this quarter were workplace infection-prevention and exposure-control requirements addressed to the business, enforced against the business and imposing on the business a duty to post and to exclude; and those orders stand beside the vaccination-proof, capacity, gathering, event-closure and quarantine orders of the same quarter, none of which is a face covering. That a vaccination-proof order affects customers, not the business: Key to NYC, C19-07y, the New Orleans rule and Safe Access O'ahu are addressed to the "covered entity," the "Covered Business" and the "designated business," bar it from admitting a class of persons, compel it to verify, post and record, and fine it; Tri-State holds that an order that "required Plaintiff to only employ vaccinated individuals" is an order whose compelled changes "were not voluntary."²⁰⁵ That the employer could operate comparably: an indoor class, performance, game or attraction that may admit only the vaccinated, only ten persons, only fifty percent or only patrons under face-covering controls is not the operation it replaced, and the statute contains no comparable-operations test. That the ten percent figure was not met: the figure is the United States' safe harbor, not a requirement, and the instruments of this quarter closed, capped or conditioned the whole of every covered facility's admissions. That the instruments were guidance: every instrument in subpart (B) carries an enforcement clause, and the New Orleans "Guidelines" were adopted by Public Health Advisory under La. R.S. 29:727 with a $500 fine and six months' confinement and enforced from August 23, 2021 by license suspension.²⁰⁶

(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 mask order and security directives (Ex. FED-020; Ex. FED-051; Ex. FED-052), the entry proclamations and land-border notices (Ex. FED-207; Ex. FED-208; Ex. FED-233; Ex. FED-234; Ex. FED-235; Ex. FED-256; Ex. FED-257; Ex. FED-258), the Title 42, testing and sailing orders (Ex. FED-038; Ex. FED-042; Ex. FED-031), the federal workplace, contractor and OSHA instruments (Ex. FED-272; Ex. FED-063; Ex. FED-064; Ex. FED-080; Ex. FED-083), Hawaii's Executive Order 21-05 and statewide face-covering requirement (Ex. HI-025; the Fifteenth Proclamation's Exhibit J and its successor proclamations), Nevada's Directives 047, 049 and 050 (Ex. NV-041; Ex. NV-043; Ex. NV-044), the statewide face-covering and exposure-control orders of Louisiana, Oregon, Illinois, New Mexico and the District (Louisiana Proclamation 137 JBE 2021; Ex. LA-038; Ex. LA-040; Ex. OR-048; Illinois Executive Orders 2021-20 and 2021-22; Ex. IL-044; New Mexico's Public Health Order of Aug. 17, 2021; Ex. NM-070; Ex. DC-057), Washington's face-covering, event and vaccination instruments (Ex. WA-078; Ex. WA-080; Ex. WA-084; Ex. WA-085; Ex. WA-101; Ex. WA-102; Ex. WA-077; Ex. WA-079), California's mega-event rule and workplace standard (the State Public Health Officer Order of June 11, 2021; Ex. SEC-17-018; Ex. ECO-B-044), the State instruments of the quarter in every other jurisdiction (Ex. RI-043; Ex. RI-047; Delaware's Twenty-Ninth Modification, § K; New Mexico's Public Health Order of June 30, 2021; Ex. NY-071; Ex. NY-072; Ex. NY-073; 10 NYCRR Subpart 66-3; Ex. ECO-B-120; Ex. NY-070; Ex. CT-050; Ex. CT-051; Ex. CT-052; Ex. CT-054; Ex. CT-055; Ex. CT-056; Ex. CT-058; Ex. NJ-055; Ex. NJ-056; Ex. NJ-057; Ex. NJ-058; Ex. MA-067; Ex. MA-068; Ex. MA-071; Ex. MA-069; Pennsylvania's Act 21 and Act 73 of 2021; Ex. PA-042; Ex. KY-052; Ex. KY-053; Ex. KY-054; Ex. VA-044; Ex. VA-045; Ex. AL-052; Ex. CO-041; Ex. CO-053; Ex. CO-091; Ex. CO-055; Georgia Executive Order 08.19.21.03; Ex. GA-046; Texas Executive Order GA-38; Ex. TX-037; Ex. TX-040; Ex. AZ-044; Ex. AZ-045; Ex. AR-017; Ex. TN-035; Ex. TN-036; Ex. MO-020; Ex. NE-068; Indiana's Control Measures under 410 IAC 1; Ex. IN-071; Ex. MT-042; Ex. ID-030; Ex. ID-064; Ex. AK-031; Ex. OR-050; Ex. NM-063; Ex. NM-065; Ex. NM-069; Maryland's Department of Health directive of Aug. 5, 2021; Ex. MD-090; Maryland's Judiciary order of Aug. 20, 2021; Maine's emergency rule of Aug. 12, 2021; Ex. ME-074; Ex. VT-059; Ex. VT-061; the Kansas quarantine mandate), the vaccination-proof entry orders of New York City, San Francisco, New Orleans and Honolulu (Ex. MET-NYC-017; Ex. MET-NYC-018; Ex. MET-NYC-019; Ex. MET-NYC-021; Ex. MET-NYC-037; Ex. MET-SFO-011; Ex. MET-SFO-017; Ex. MET-MSY-029; Ex. MET-MSY-030; Ex. MET-MSY-032; Ex. MET-HNL-035; Ex. MET-HNL-037; Ex. MET-HNL-038; Ex. MET-HNL-052), Honolulu's gathering and event orders (Ex. MET-HNL-032; Ex. MET-HNL-033), the Los Angeles County and Pasadena face-covering and mega-event orders (Ex. MET-LA-018; Ex. MET-LA-019; Ex. MET-LA-035; Ex. MET-LA-045; Ex. MET-LA-053; Ex. MET-LA-054 (Pasadena); Ex. MET-LA-056 (Pasadena); Ex. MET-LA-023), King County's orders (Ex. MET-SEA-002; Ex. MET-SEA-001; Ex. MET-SEA-018; Ex. MET-SEA-024), the Bay Area's orders (Ex. MET-SFO-008; Ex. MET-SFO-010; Ex. MET-SFO-049; Ex. MET-SFO-071; Ex. MET-SFO-050; Ex. MET-SFO-051), the local face-covering and exposure-control orders inside every facility (Ex. MET-STL-020; Ex. MET-STL-021; Ex. MET-STL-022; Ex. MET-STL-069; Ex. MET-SAC-015; Ex. MET-KC-001; Ex. MET-KC-002; Ex. MET-KC-003; Ex. MET-KC-006; Ex. MET-KC-045; Ex. MET-KC-046; Ex. MET-KC-067; Ex. MET-KC-068; Ex. MET-KC-073; Ex. MET-SDF-017; Ex. MET-SDF-005; Ex. MET-DCM-023; Ex. MET-DCM-024; Ex. MET-DCM-025; Ex. MET-DCM-128; Ex. MET-DCM-130; Ex. MET-BAL-017; Ex. MET-CHI-026; Ex. MET-CHI-041; Ex. MET-CHI-049; Ex. MET-CHI-031; Ex. MET-CLT-031; Ex. MET-CLT-045; Ex. MET-CLT-054; Ex. MET-PHL-019; Ex. MET-PHL-020; Ex. MET-PHL-071; Ex. MET-PHX-002; Ex. MET-MKE-023; Ex. MET-MKE-024; Ex. MET-ATL-016; Ex. MET-ATL-017; Ex. MET-BOS-013; Ex. MET-BOS-014; Ex. MET-BOS-063; Ex. MET-BOS-150; Ex. MET-BOS-036; Ex. MET-BOS-131; Ex. MET-BOS-130; Ex. MET-DEN-033; Ex. MET-DEN-032; Ex. MET-DEN-081; Ex. MET-DEN-082; Ex. MET-DEN-102; Ex. MET-DEN-024; Ex. MET-CMH-048; Ex. MET-CMH-050; Ex. MET-CMH-049; Ex. OH-094; Ex. AK-095; Ex. AK-096; Ex. IA-067; Ex. NE-089; Ex. AL-086; Ex. AL-087; Ex. SC-061; Ex. MET-SLC-029; Ex. MET-LAS-009; Ex. MET-LAS-019; Ex. MET-BNA-076; Ex. MET-HOU-039; Ex. MET-HOU-052; Ex. MET-HOU-053; Ex. MET-SAT-064; Ex. MET-SAT-067; Ex. MET-DFW-028; Ex. MET-MSY-027; Ex. MET-MSY-028; Ex. MET-MSY-063; Ex. MET-MSY-071; Ex. MET-MSY-072; Ex. MET-PIT-036; Ex. MET-PHX-016; Ex. MET-CIN-007; Ex. MET-CMH-044; Ex. MET-CMH-046; Ex. MET-ORL-047; Ex. UT-051; Ex. MN-054; Ex. HI-068; Ex. RI-085; Ex. SC-055; Ex. SC-056; Ex. IA-056; Ex. MET-LA-062), the vaccination-or-test orders on the industry's part-time workforce (Ex. CA-031; Ex. CA-030; Ex. CA-033; Ex. CA-039; Ex. NY-071; Ex. NJ-056; Ex. CT-051; Ex. MA-067; Ex. MA-068; Maine's rule of Aug. 12, 2021; Ex. OR-046; Ex. OR-051; Ex. OR-052; Ex. WA-077; Ex. WA-079; Ex. RI-072; Ex. DE-046; Ex. DE-047; Ex. CO-055; Maryland's directives of Aug. 5 and 18, 2021; Ex. MD-060; Ex. MN-044; Ex. NM-063; Ex. NM-071; Hawaii's Emergency Proclamation of Aug. 5, 2021 and Executive Order 21-06; Ex. HI-027; Ex. DC-075; Ex. DC-076; Ex. VA-045; Ex. MET-NYC-035; Ex. MET-NYC-036; Ex. MET-NYC-040; Ex. MET-NYC-041; Ex. MET-NYC-043; Ex. MET-DEN-023; Ex. MET-DEN-025; Ex. MET-LA-055; Ex. MET-BOS-041; Ex. MET-PHL-021; Ex. MET-PHL-065; Ex. MET-TPA-033; Ex. MET-CMH-047; Ex. MET-MSP-020; Ex. MET-CLE-026; Ex. MET-CLE-036), the school masking and quarantine orders (Ex. CA-034; Ex. OR-045; Ex. MET-HOU-038; Ex. MET-SAT-066; Ex. MET-DET-013; Ex. MET-DET-015; the Ottawa County order of Aug. 6, 2021; Ex. MI-083; Ex. MI-084; the Berrien County order of Sept. 1, 2021; Ex. DE-044; Ex. DE-045; Ex. ID-079; Ex. NC-032; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-008; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-031; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-047; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-052; Ex. TX-053; Ex. AL-084; Ex. ND-083; Ex. WY-060), the quarantine and isolation orders (Ex. MET-SAN-023; Ex. MET-SAN-024; Ex. MET-SAC-016; Ex. MET-SAC-017; Ex. MET-PIT-014), the sector regulators' instruments (Ex. AGY-ST-GAMING-RACING-076; Ex. AGY-ST-GAMING-RACING-077; Ex. AGY-ST-GAMING-RACING-078; Ex. NV-051; Ex. NM-068) and the continuing suspension the orders of the five preceding quarters caused, 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 the industry's facilities and gatherings in Hawaii, barring the unvaccinated from its doors in four of the nation's largest cities, conditioning its largest events in five States and two counties, placing every person inside it under airborne-transmission controls in eight jurisdictions and more than twenty localities, quarantining its exposed staff, governing every school building its programs use, conditioning every commute, tour and international engagement, and leaving in place on July 1 an operation the orders of the preceding fifteen months had dismantled and not yet permitted to be rebuilt.²⁰⁷

What this analysis does not claim was in force

This analysis does not rely, for the third quarter of 2021, on any statewide order closing gyms, studios, theaters, cinemas, bowling alleys, arcades or live venues, because none was in force; any statewide percentage cap on the industry other than Hawaii's from August 10 and Washington's over-10,000 rule; any statewide youth-sport or league pause; any stay-at-home order; any statewide gathering cap other than Hawaii's; any vaccination-proof order of statewide scope on patrons (the instruments were Honolulu's, New York City's, San Francisco's, New Orleans's, the Pasadena and Los Angeles County mega-event orders, Nevada's large-event condition and New Mexico's State Fair rule); any State order on the industry in Florida, Texas (beyond GA-38's terms), Georgia, Alabama, Mississippi, South Carolina, Tennessee, Arkansas, Oklahoma, Iowa, Montana, Idaho, Utah, Wyoming, North Dakota, South Dakota, Nebraska, Indiana, Ohio, Kansas, Missouri, Wisconsin, Michigan, Minnesota, Vermont, New Hampshire or Maine beyond the emergency, health-care, school, court and workforce instruments named in subpart (B); the FFCRA leave mandates (expired December 31, 2020); Proclamation 10014 (revoked February 24, 2021) and Proclamation 10052 (expired March 31, 2021); the No Sail Order (superseded October 30, 2020); the 2020 closure orders, the winter re-closures and the spring 2021 capacity orders of every State that withdrew them before July 1, 2021, each of which is relied on only for the quarters in which it was in force and, for this quarter, only as the cause of the continuing suspension its own step dates prove; the Chicago vaccination-proof order for indoor dining, fitness and entertainment (effective January 3, 2022); the Minneapolis and Saint Paul vaccination-proof orders (January 2022); Boston's B Together order (December 20, 2021); Los Angeles's SafePassLA (November 8, 2021); the King County verification order's entry requirement (October 25, 2021, cited here only as an order issued September 16 whose compelled preparation began on issuance); Los Angeles County's outdoor mega-event and bar order (October 7, 2021, cited on the same footing); the OSHA Healthcare Emergency Temporary Standard except at on-site clinics and athletic-training rooms staffed by health-care personnel; Fairfax County Public Schools' proof-of-vaccination requirement for athletic participation (announced August 30, 2021; effective November 8, 2021); the Governor of Hawaii's Emergency Proclamation of October 1, 2021, cited only as the restatement of Executive Order 21-05; the Navajo Nation's Public Health Emergency Order 2021-020 (October 18, 2021) and the Virgin Islands' Thirty-First Supplemental Order (effective October 29, 2021), each cited only as the successor in its series; the Alabama extension proclamation of October 8, 2021 (Ex. AL-053), cited only as the successor of the August 13 emergency; and the agency announcements the Library records as context rather than as orders (the National Park Service's Yosemite day-use reservation announcement, the school districts' and convention authorities' announcements and the gaming boards' releases cited in the layers section), which are cited as evidence of operating conditions and never as orders. The proof for this quarter rests visibly on none of them.²⁰⁸