Mr. Withrow:

I am writing you today on behalf of the Virginia Agribusiness Council to provide comments regarding the proposed Permanent Standard for COVID-19 mitigation.  The Council is a member-based trade association representing the agriculture and forestry industries, contributing $91 billion of economic impact in the Commonwealth.  

We continue to oppose the standard as an unnecessary, static, and one-size fits all policy that does not allow the different industry sectors to adapt to the latest science and guidelines for mitigation.  However, should the Board decide to make the standard permanent, the Council urges the Board to retain the provision revoking the standard if the Governor removes the State of Emergency.  If a vaccine is approved and distributed in the next 12 months, large sections of the standard will be unnecessary and outdated.  A permanent standard responding to a temporary threat is nonsensical, and therefore, should sunset when the Governor’s State of Emergency expires.

The Council appreciates the inclusion of language allowing compliance with the standard by following the latest CDC publication.  The industry has already invested millions of dollars and implemented unprecedented safety measures to protect their workforce and maintain the food supply.  The different sectors of our industry have followed guidelines from the CDC, U.S. Department of Labor, and the Virginia Department of Agriculture and Consumer Services (VDACS).

Furthermore, public-facing businesses such as farmers markets, farm wineries, and farm breweries and others, have followed the Governor’s Phase III Guidelines.  Each individual farm, agribusiness, sawmill, papermill, etc. provides multiple services, could process products differently, and be a diversified operation with different types of agricultural production.  The Permanent Regulation is yet another layer from another agency that leads to confusion and endangers the very workers the standard seeks to protect.  The clause allowing compliance by following a CDC guidance document should be continued and clarified to reduce confusion.

We renew our initial finding that the definition of “technical feasibility” holds the industry to a standard requiring “technical know-how” and a level of compliance that “lags significantly behind that of their industry”.  Many of the requirements contained in the Regulation are qualified by the terms “to the extent feasible”.  This standard will likely lead to subjective and inconsistent enforcement depending on the employee making the complaint and the VOSH investigator.  Additionally, each individual industry is diverse, especially that of agriculture and forestry.  

We appreciate the Department’s willingness to provide educational materials surrounding the ETS.  However, we are concerned that there are requirements contained in the ETS that businesses have not been given a proper mechanism with which to comply.  For example, the notification requirements allow a business to notify the Virginia Department of Health upon confirmation of a positive case.  There is currently no standard reporting form or mechanism to report such a case to the Virginia Department of Health that we are aware.  In addition, the provisions surrounding HVAC systems are unobtainable for some of our members.  Asking those businesses to constantly update those systems is unrealistic and provides very little benefit in combating the virus.  This requirement should be removed.  Before enforcement actions are taken on any updated proposal, we ask that the Permanent Standard be amended to provide realistic expectations and businesses be given the tools they need to satisfy the requirements.

Finally, the Emergency Temporary Standard was adopted hastily and without adequate time for public input.  There are measures currently contained in the ETS that are out of date or impossible to achieve for any business.  We urge the Board not to make the same mistake with a regulation designed to last into the future.  The Council believes that further amendments may be proposed by members of the Health and Safety Codes Board or the Administration.  The Council would ask that should any amendments be proposed or adopted by the Board; the Board should allow for a second comment period before the final Permanent Standard is adopted.

We appreciate the opportunity to comment on the proposed Permanent Standard and would be happy to answer any questions the Board may have.

Sincerely,

Kyle Shreve

Executive Director

Virginia Agribusiness Council