The Proposal Short Circuits Legal, Necessary, and Meaningful Public Process; The Board Should Not Adopt the Rules at this Time

VOSH program staff is asking the Board to approve an enormous rule in terms of its sweep and impact.  It is wrong to promulgate such sweeping regulations without the traditional public process of an ordinary rule , like a real, meaningful public comment period, economic impact statements, and regulatory flexibility analysis for small businesses.  The regulations are very complicated, lend themselves to arbitrary enforcement, and create conflict with other schemes.  For now, the proposal should act as guidance and not regulation.  The Board could put out guidance and continue to use an ordinary rulemaking process and not a truncated emergency process to provide a higher quality rule and better understanding among the regulated community.  Businesses would have various incentives to basically follow such guidance.  The burden of this proposed rule on small businesses is particularly onerous.

I want to start with the problem that this proposed rule follows a set of sweeping, illegal orders from Governor Northam and Commissioner of Health Oliver, that overlap in the legal space of the proposed rule.  Without question, those orders were covered by the Virginia Administrative Process Act (VAPA).  Both Governor Northam and Commissioner Oliver, in the context of those orders, have violated VAPA in multiple ways.  This is among several  reasons those orders are not legal. Under VAPA, a "rule" or "regulation" means any statement of general application, having the force of law, affecting the rights or conduct of any person, adopted by an agency in accordance wit the authority conferred on it by applicable basic laws.  The Northam and Oliver orders meet this definition. "Agency" means any authority, instrumentality, officer, board or other unit of the state government empowered by the basic laws to make regulations or decide cases.  Governor Northam and Commissioner Oliver, in the context of these orders, meet these definitions.

I also take note of the failure of the State Board of Health toward its responsibilities under sections 32.1-13 and 32.1-20.  Neither the State Board of Health nor Commissioner Oliver had any public comment period, economic impact statement or regulatory flexibility analysis for those orders.

The illegal Northam and Oliver orders pose a substantial problem here because the overlap of directives between those orders and this massive proposed rule is rife with additional legal uncertainty and confusion.  The proposed rule specifically cross-references applicable executive orders and orders of public health emergency.  It is not easy to know what this means.  In any event, the Safety and Health Codes Board may not delegate regulatory  authority to those officials. Nothing in this proposed regulation should add to any purported penalties or enhance the status of those illegal orders.  This action cannot codify a previously illegal action.

I now turn to the short-cuts of public process the VOSH program asks the Board to bless with respect to this massive proposed rule.  A 10-day public comment period for of this magnitude followed by two days to review comments is not reasonable or responsible.  The Board needs to actually respond to the comments and a 10-day period for comments is insufficient.  This proposed rule covers every business in the state.  These businesses have not had time.   Whatever the legal analysis by VOSH staff, and I think the analysis is flawed, this is not good government.

It is not just the comment period at issue.  VAPA requires an economic impact statement and a regulatory flexibility analysis for small businesses.  The public should be able to comment on these analyses. The Board should require them.

The VOSH Program makes two arguments in support of the illegal and inappropriate process. First, VOSH staff claims the regulatory situation constitutes an emergency situation within the meaning of section 2.2-4011 of VAPA.  The point of the emergency situation provision of VAPA is that the need for expedition outweighs the inherent and assumed quality that comes from full process. Commissioner Oliver declared COVID-19 a public health threat on February 7, 2020.  Governor Northam declared a State of Emergency on March 12, 2020.  States have been addressing these issues for months and months.  The basic guidance of the proposed rules have been out there for businesses. The Virginia State Board of Health did not even meet in March, April, or May.  The call for "emergency" is just a call to short-cut legal process. In large measure, the control of COVID-19 is up to citizens in their individual actions.  Citizens, whether employees, employers, customers or otherwise, will need to wear masks properly when appropriate, wash hands, keep distances, etc..  The idea that this regulatory scheme with its many plans and bureaucratic requirements is fundamental or an emergency that outweighs public process is questionable at best.

Also, note that section 2.2-4011 does not eliminate other requirements of VAPA like a regulatory impact analysis and at least starting and economic impact statement.

VOSH staff also offers up section 40.1-22(6) as a special authority for the Board, if the BOard determines employees are exposed to grave danger and that such emergency standard is necessary to protect employees from such danger. The Board should not purport to exercise this authority.  The COVID-19 risk is significant but also arises from many, many  interactions among people.  The grave danger standard needs to apply to truly extraordinary situations and risk.  States are reopening businesses all around the country.  Labeling COVID a grave risk may or may not be appropriate for certain tailored settings. However, the use of this authority cannot apply to this rule that applies to all businesses and all settings. Again, this is just a means of short-circuiting ordinary process and is not warranted.

I ask the Board to not approve the proposed rule at this time, and instead, follow all of the regular procedures and requirements of VAPA.  Further, the Board should strongly consider operating by guidance and not by establishing onerous requirements and penalties.  If we see recalcitrance to the basic guidance that is unreasonable, that could be a reason to establish rules.