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Newsletter
Volume 100
March 1, 2012
Reminder: Have You Submitted Your SARA Tier II Report?
SARA Tier II submissions are due on March 1st. These are annual requirements that most retailers are familiar with, however, the penalties have become quite severe for non-compliance. Each of our clients required to submit a SARA Tier II Report will have received either a Master Report to be used by the facility personnel in reporting and certifying the data electronically as mandated by their state, ....or the packet of traditional hard copies to be signed, certified and submitted to their State Emergency Response Commission, Local Emergency Planning Commission and Fire Department. Don't forget to follow your state's instructions to pay any applicable fees.
Pesticide-Production Report Update
The Asmark Institute submits and documents receipt by U.S. EPA of the Pesticide Production Report for each of our clients. All clients' reports were shipped on schedule to be received by U.S. EPA before the March 1st deadline. You will receive your file copy and documentation of delivery to U.S. EPA for your records in the next couple of weeks. If you have questions or need additional information, please contact Nick Clements at nick.clements@asmark.org or 270-926-4600, Ext 229.
Registration Open for Professional Applicator Training
Online registration is now available for the 2012 Asmark Institute Professional Applicator Training (PAT). Classes hold up to 30 people and the cost is $220 per person with lunch provided on location. There will be 36 classes scheduled throughout 2012. Click here for more information and to register. Check out the current schedule to the right. New dates will be added as they are scheduled. If you are interested in PAT in your area, please contact Dustin Warder at dustin@asmark.org or 270-926-4600, Ext 203.
Reminder: Have You Posted Your 300A?
It's time to complete your 2011 injury and illness recordkeeping obligations by posting the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A). OSHA requires that the notice be displayed from February 1st to April 30th of each year in a conspicuous place where employee notices are customarily posted. Businesses with no injuries or illnesses for the year must still post the form. A company official must certify the information in Form 300A was examined and is believed to be correct and complete. Click here to access the form and instructions.
Environmental Respect Awards: Two Weeks Left to Enter
An Environmental Respect Award is not a one-time honor. It is about carrying the flag, being advocates for agriculture, and pledging a lifetime commitment. March 16th is the deadline to pledge your commitment. Click here to enter.
Consolidation Chart Available Soon
As announced in an earlier edition of this newsletter, the industry now has a Consolidation Chart that visually portrays its heritage. The project began by compiling CropLife™ magazine's list of Top 100 ag chemical and fertilizer dealers spanning the period from 1984 to 2011. In addition to the information provided by CropLife™, literally hundreds of hours of research and interviews with industry professionals were used to create the final Consolidation Chart. Click here to view the 2011 Consolidation Chart. Due to numerous requests, a smaller 25" x 37" full color version is being printed. The poster-size version will be available for $12 plus shipping charges while supplies last. Click here to order your poster-size 2011 Consolidation Chart. A larger full-size 48" x 72" version of the 2011 Consolidation Chart is also available by contacting Donna at donna@asmark.org or 270-926-4600, Ext 205.
IDOA Permitting Service to be Discontinued
In the early 90's we helped many retailers in Illinois obtain their permit required by the Illinois Department of Agriculture (IDOA). In the beginning it was a valuable service that helped our clients develop a line of communication with IDOA and resulted in an approved permit for operations. Today, our role in the permit process has been reduced to issuing modifications periodically and renewal letters every five years. To facilitate the permitting process, the Asmark Institute utilized a computer-assisted drawing program called AutoCAD. This program is very expensive to purchase and maintain. Since the use associated with permitting has declined to a low point, it is no longer feasible to maintain the subscription. From the beginning, we have always been concerned with providing construction drawings and specifications for the design of facilities as we are not engineers, nor have we ever represented ourselves to be. While we believe we made a good decision to try to help our clients in the beginning, we now believe the right decision is to excuse ourselves from the permitting process and encourage a better and more direct line of communication between our client and the IDOA. The Asmark Institute will continue to provide guidance and help on permitting, but will no longer offer permitting services that include construction drawings or completion of permit application forms. For more information, or if you have questions, please contact Allen Summers at allen@asmark.org or 270-926-4600, Ext 201.
Court Decision on Florida Numeric Nutrient Criteria - Good News!
The Fertilizer Institute (TFI) notified its members of positive news regarding their court challenge to the EPA's efforts to impose numeric nutrient criteria (NNC) in the state of Florida. In response to litigation filed by TFI and other stakeholders, United States District Judge Robert L. Hinkle ruled against EPA on Friday on the issue of greatest importance to TFI; finding that the Agency's proposed stream criteria as well as certain aspects of the downstream protection values (DPV) for lakes are both arbitrary and capricious, thus preventing the Agency from implementing its proposed criteria for these water bodies in the state of Florida.
Specifically, a significant and potentially precedent setting part of the Court's ruling states that for streams in particular, the Agency did not demonstrate that increases in nutrients result in a harmful increase in flora or fauna. For this reason, the Court found the reference method EPA utilized to derive the NNC to be arbitrary and capricious. In other words, EPA's method lacked a confirmation of biological harm, as the Florida rule mandates, before impairment may be determined. Such a decision was the cornerstone of TFI's legal case, as they focused on legal and scientific vulnerabilities of the streams standard (and this aspect of the rule was most important to affected entities). Additionally, this is a significant precedent because it may impact Federal water quality regulations elsewhere in the United States.
Because the Court upheld several of EPA's arguments, including a January 2009 determination that numeric nutrient criteria are necessary for Florida's waters, EPA will still have a voice in the implementation of criteria for streams. In this regard, the Agency can elect either to go back to the drawing board and propose new, presumably science-based criteria, or demonstrate how its now defunct criteria for streams prevents harmful biological imbalances. Should EPA decide to propose revised nutrient criteria, it has the option of choosing existing numeric nutrient criteria developed by Florida's Department of Environmental Protection (DEP). The court-ordered deadline for EPA's decision on this issue is May 21, 2012. A grassroots letter is being circulated to urge EPA Administrator Lisa Jackson to replace its rule with DEP's rule. The Court also sided with EPA on lakes and springs criteria, DPVs for impaired lakes, and the site-specific alternative criteria (SSAC), and it appears that those rules will go into effect on March 6th.
TFI's President Ford West indicated they were extremely pleased with the outcome of this litigation and the overall efforts of their litigation team lead by Crowell & Moring. "While we rarely seek the assistance of the court on our issues, we strongly believed that the potential harm EPA's NNC posed to Florida's phosphate industry and Florida agriculture along with the precedent setting nature of the EPA rule merited a legal challenge," said West. "The industry's success on this issue resulted from a unified effort from our industry."
MACA Names New Water Consultant
The Mid America CropLife Association (MACA) has named Steve Taylor as its new water consultant. Steve serves as President and Executive Director of the Missouri Agribusiness Association (MO-AG). Currently as part of his duties at MO-AG, Taylor engages in issues affecting the industry and works with several affiliated organizations. Steve will continue to serve as Executive Director of the Missouri Agribusiness Association as well. As the MACA Water Consultant, he provides research and information gathering services directed by MACA in crop protection matters, including the U.S. Geological Survey's National Water-Quality Assessment Program (USGS NAWQA) and the Great Lakes Initiative involving Canada and the Midwestern States. In addition, he monitors, reviews and assists MACA with respect to environmental concerns, in pending state management plans, legislative and executive branch proposals, laws, regulations and/or developments, which may affect MACA. Congratulations Steve!
OSHA Releases Regulatory Agenda
OSHA just released its semi-annual regulatory agenda, which reveals that two landmark rules, Hazard Communication and Confined Spaces in Construction standards, are approaching the final rulemaking stage. According to OSHA, the Hazard Communication Standard is slated for final action in February 2012 and the Confined Spaces in Construction rule will follow in June. In total, there are 11 final rules and five proposed rules that are projected to move forward through the rulemaking stages over the next year. In addition, OSHA is continuing its development of a rule requiring employers to implement an Injury and Illness Prevention Program. Click here to review the entire agenda.
U.S. Unemployment Data Excludes Millions Who Stopped Job Search
According to a report in the Washington Post, the drop in the U.S. unemployment rate, now at its lowest in three years, masks the fact that millions of unemployed people aren't counted because they've given up the search for work. The unemployment rate would be 9.9%, not 8.3%, if official statistics counted the 2.8 million people who stopped looking for jobs.
Illinois Issues with Flow Meters
The Illinois Department of Agriculture (IDOA) Weights & Measures regulations require all measuring and metering devices used for the sale of a product to a consumer be in conformance with the National Type Evaluation Program (NTEP). This has been a requirement of the regulations since the late 1980s. In our industry, there are some older flow/paddle/vein type meters used to measure liquid fertilizer or pesticides, and they are often calibrated by dispensing product into a container and weighing it on a certified scale. This practice, while sensible, does not strictly meet the regulatory requirement when larger quantities are dispensed into an applicator rig, unless the applicator can be taken over a truck scale. At many facilities, a truck scale is not present or the scale is not large enough to accommodate an applicator vehicle. Under this circumstance, the meters are not in compliance with the regulations. Only mass flow meters meet the NTEP requirements and many of the older flow/paddle/vein meters do not. IDOA recently conducted investigations in Northern Illinois regarding the use of these meters at fertilizer facilities. Jean Payne, President of the Illinois Fertilizer and Chemical Association (IFCA), met with IDOA and is working toward a reasonable solution to allow our industry to demonstrate compliance until we can arrive at a policy that phases in replacement of these older meters. If you have older paddle/vein/flow meters, be aware that this is an issue and that IFCA is working cooperatively with IDOA to resolve this in a manner for our members to achieve compliance, while recognizing the suddenness of this development and the financial implications of meter replacement.
EPA Seeks to Re-establish RMP Information Availability
On December 9th, EPA informed stakeholders of its intent to re-establish access via the internet to non off-site consequence analysis (OCA) sections of the Risk Management Plan (RMP) program. The Fertilizer Institute (TFI) recognized the concern surrounding this issue and has brought this matter to the attention of Representative Dan Lungren (R-California), Chairman, Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies, House Committee on Homeland Security. On February 16th, Representative Lungren sent a letter to EPA Administrator Lisa Jackson asking that this decision be reconsidered. We will keep you informed regarding this matter.
State Requirements for Medical Card/CDL Merger Rule Posted by AAMVA
Drivers must "self-certify" to the state indicating if they are subject to the federal rule. Starting January 30, 2012, and no later than January 30, 2014, all CDL holders must provide information to their state driver licensing agencies regarding the type of commercial motor vehicle operation they drive in or expect to drive in with their CDL. Drivers operating in certain types of commerce will be required to submit a current medical examiner's certificate to their licensing agency to obtain a "certified" medical status as part of their driving record. CDL holders required to have a "certified" medical status who fail to provide and keep up-to-date their medical examiner's certificate with their licensing agency, will become "not-certified" and they may lose their CDL. American Association of Motor Vehicle Administrators (AAMVA) has generated a table of state-by-state requirements for drivers and information related to how a state is handling the medical certification requirements, along with who to contact for additional information. Click here to visit the AAMVA site.
Do You Operate Interstate or Intrastate? (The answer may surprise you.)
This article is made possible by J.J. Keller & Associates, a valued partner of the Asmark Institute for over 23 years. Our thanks to J.J. Keller for their support over the years and for the use of this article.
It seems like a fairly straightforward issue. Interstate transportation involves a vehicle crossing borders and operating in two or more jurisdictions; if a truck never leaves a state, it must be performing intrastate motor carriage. Surprisingly, this is not always true. FMCSA provides the definition of interstate transportation in 49 CFR 390.5. Any evaluation of interstate or intrastate begins with this definition: Interstate commerce means trade, traffic, or transportation in the United States-
  1. Between a place in a State and a place outside of such State (including a place outside of the United States);
  2. Between two places in a State through another State or a place outside of the United States; or
  3. Between two places in a State as part of trade, traffic, or transportation originating or terminating outside the State or the United States.
The first two parts of this definition are pretty clear - a vehicle crossing a border means interstate commerce. It is the third part of the definition that complicates things - interstate commerce is trade, traffic, or transportation involving the crossing of a state boundary. When either the vehicle, its passengers, or cargo cross a state boundary, or there is intent to cross a state boundary, the carrier is considered an interstate carrier.
The FMCSA does offer some clarification with this guidance in 49 CFR 390.3 General Applicability:
Question 6: How does one distinguish between intra- and interstate commerce for the purposes of applicability of the FMCSRs?
Guidance: Interstate commerce is determined by the essential character of the movement, manifested by the shipper's fixed and persistent intent at the time of shipment, and is ascertained from all of the facts and circumstances surrounding the transportation. When the intent of the transportation being performed is interstate in nature, even when the route is within the boundaries of a single State, the driver and CMV are subject to the FMCSRs.
The bottom line is this: If your vehicles cross state lines, or if your vehicles transport cargo or passengers that have or will cross state lines, you are an interstate carrier, subject to compliance with the Federal Motor Carrier Safety Regulations. The Unified Carrier Registration Agreement (UCR) uses the same definition - if the vehicle, freight, or passengers cross states lines, it is an interstate vehicle subject to annual UCR registration.
However, when it comes to state taxation matters, such as vehicle licensing/IRP and fuel tax reporting/IFTA, the only consideration is where the vehicle itself travels. You may be operating vehicles that are intrastate as far as IRP and IFTA are concerned, but interstate for DOT safety and UCR compliance. Correctly classifying your operation will keep you in compliance.
Obama Makes Recess Appointments to Controversial NLRB
President Barack Obama used his recess appointment powers, placing two Democrats and one Republican on the National Labor Relations Board (NLRB). The NLRB lost its quorum when the term of Democrat Craig Becker (another recess appointee) expired. Under a 2010 U.S. Supreme Court decision, without a quorum the NLRB is unable to rule on cases or promulgate regulations. The controversial move by President Obama by-passes the Senate approval process and will allow the NLRB to continue operating. The appointees include former International Union of Operating Engineers General Counsel Richard Griffin, Labor Department Deputy Assistant Secretary for Congressional Affairs Sharon Block, and NLRB staff attorney Thomas Flynn. Griffin and Block are Democrats, while Flynn is a Republican. The three will join current Chairman Mark Pearce, a Democrat, and the board's sole Republican, Brian Hayes, to give the panel a 3-2 Democratic majority.
Revised Acetylene Standard Takes Effect March 5th
OSHA's direct final rule revising the Acetylene Standard for general industry goes into effect March 5th. The revised standard replaces a reference to an outdated consensus standard with an updated reference from the Compressed Gas Association Pamphlet G-1-2009, Acetylene. The update will provide employers with guidance that reflects current industry practices to better protect their workers from injury or death. In a December 5th Federal Register notice, OSHA announced the direct final rule would go into effect after three months, barring any significant adverse comments on the rule. OSHA received only one comment, which it determined was not a significant adverse comment. Click here to review the standard.
OSHA Cites Grain Facility in Ohio
OSHA cited a Coldwater grain facility with 13 safety violations for failing to ensure hazardous energy sources were secured, among other dangers. OSHA opened an inspection in September based on a complaint that a worker had suffered sprains, multiple lacerations and contusions as a result of having clothing become caught in a conveyor belt that had not been properly locked out prior to maintenance and cleaning activities. The Coldwater-based facility faces proposed fines of $112,000. Two willful violations with penalties of $70,000 have been cited for the employer's failure to develop and ensure machine-specific energy control procedures were used to control the flow of hazardous energy when workers were cleaning the conveyor system, which left them exposed to amputation and "caught-by" hazards. A willful violation is one committed with intentional, knowing or voluntary disregard for the law's requirement, or plain indifference to employee safety and health.
Seven serious safety violations with penalties of $38,000 involve the employer's failure to provide guarding around floor holes, provide adequate assessments to determine if personal protective equipment was required, provide training on lockout/tagout procedures for hazardous energy sources, guard machines and shaft ends, certify that a workplace hazard assessment was performed, provide workers with safety glasses while they were cleaning with compressed air, and use compressed air for cleaning at a pressure of less than 30 pounds per square inch. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.
Four other-than-serious violations with $4,000 in penalties involve failing to properly complete the OSHA 300 injury and illness log for the years 2008 through 2011. An other-than-serious violation is one that has a direct relationship to job safety and health, but probably would not cause death or serious physical injury. "Failing to develop and implement procedures to control hazardous energy by locking out equipment prior to cleaning operations exposes workers to amputation and caught-by hazards, and demonstrates this employer's lack of regard for workers' safety and health," said Kim Nelson, OSHA's area director in Toledo. "OSHA is committed to protecting workers on the job, especially when employers fail to do so." Prior to this inspection, the company had been inspected by OSHA five times since 2001, resulting in citations for 12 serious violations related to electrical safety, machine guarding and a lack of hazard communication.
2012 Asmark Institute, Inc. This information is believed to be reliable by the Asmark Institute, however, because of constantly changing government regulations, interpretations and applicability or the possibility of human, mechanical or computer error, the Asmark Institute does not guarantee the information as suitable for any particular purpose.
Reminder: Have You Submitted Your SARA Tier II Report?
SARA Tier II submissions are due on March 1st. These are annual requirements that most retailers are familiar with, however, the penalties have become quite severe for non-compliance. Each of our clients required to submit a SARA Tier II Report will have received either a Master Report to be used by the facility personnel in reporting and certifying the data electronically as mandated by their state, ....or the packet of traditional hard copies to be signed, certified and submitted to their State Emergency Response Commission, Local Emergency Planning Commission and Fire Department. Don't forget to follow your state's instructions to pay any applicable fees.
Pesticide-Production Report Update
The Asmark Institute submits and documents receipt by U.S. EPA of the Pesticide Production Report for each of our clients. All clients' reports were shipped on schedule to be received by U.S. EPA before the March 1st deadline. You will receive your file copy and documentation of delivery to U.S. EPA for your records in the next couple of weeks. If you have questions or need additional information, please contact Nick Clements at nick.clements@asmark.org or 270-926-4600, Ext 229.
Registration Open for Professional Applicator Training
Online registration is now available for the 2012 Asmark Institute Professional Applicator Training (PAT). Classes hold up to 30 people and the cost is $220 per person with lunch provided on location. There will be 36 classes scheduled throughout 2012. Click here for more information and to register. Check out the current schedule to the right. New dates will be added as they are scheduled. If you are interested in PAT in your area, please contact Dustin Warder at dustin@asmark.org or 270-926-4600, Ext 203.
Reminder: Have You Posted Your 300A?
It's time to complete your 2011 injury and illness recordkeeping obligations by posting the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A). OSHA requires that the notice be displayed from February 1st to April 30th of each year in a conspicuous place where employee notices are customarily posted. Businesses with no injuries or illnesses for the year must still post the form. A company official must certify the information in Form 300A was examined and is believed to be correct and complete. Click here to access the form and instructions.
Environmental Respect Awards: Two Weeks Left to Enter
An Environmental Respect Award is not a one-time honor. It is about carrying the flag, being advocates for agriculture, and pledging a lifetime commitment. March 16th is the deadline to pledge your commitment. Click here to enter.
Consolidation Chart Available Soon
As announced in an earlier edition of this newsletter, the industry now has a Consolidation Chart that visually portrays its heritage. The project began by compiling CropLife™ magazine's list of Top 100 ag chemical and fertilizer dealers spanning the period from 1984 to 2011. In addition to the information provided by CropLife™, literally hundreds of hours of research and interviews with industry professionals were used to create the final Consolidation Chart. Click here to view the 2011 Consolidation Chart. Due to numerous requests, a smaller 25" x 37" full color version is being printed. The poster-size version will be available for $12 plus shipping charges while supplies last. Click here to order your poster-size 2011 Consolidation Chart. A larger full-size 48" x 72" version of the 2011 Consolidation Chart is also available by contacting Donna at donna@asmark.org or 270-926-4600, Ext 205.
IDOA Permitting Service to be Discontinued
In the early 90's we helped many retailers in Illinois obtain their permit required by the Illinois Department of Agriculture (IDOA). In the beginning it was a valuable service that helped our clients develop a line of communication with IDOA and resulted in an approved permit for operations. Today, our role in the permit process has been reduced to issuing modifications periodically and renewal letters every five years. To facilitate the permitting process, the Asmark Institute utilized a computer-assisted drawing program called AutoCAD. This program is very expensive to purchase and maintain. Since the use associated with permitting has declined to a low point, it is no longer feasible to maintain the subscription. From the beginning, we have always been concerned with providing construction drawings and specifications for the design of facilities as we are not engineers, nor have we ever represented ourselves to be. While we believe we made a good decision to try to help our clients in the beginning, we now believe the right decision is to excuse ourselves from the permitting process and encourage a better and more direct line of communication between our client and the IDOA. The Asmark Institute will continue to provide guidance and help on permitting, but will no longer offer permitting services that include construction drawings or completion of permit application forms. For more information, or if you have questions, please contact Allen Summers at allen@asmark.org or 270-926-4600, Ext 201.
Court Decision on Florida Numeric Nutrient Criteria - Good News!
The Fertilizer Institute (TFI) notified its members of positive news regarding their court challenge to the EPA's efforts to impose numeric nutrient criteria (NNC) in the state of Florida. In response to litigation filed by TFI and other stakeholders, United States District Judge Robert L. Hinkle ruled against EPA on Friday on the issue of greatest importance to TFI; finding that the Agency's proposed stream criteria as well as certain aspects of the downstream protection values (DPV) for lakes are both arbitrary and capricious, thus preventing the Agency from implementing its proposed criteria for these water bodies in the state of Florida.
Specifically, a significant and potentially precedent setting part of the Court's ruling states that for streams in particular, the Agency did not demonstrate that increases in nutrients result in a harmful increase in flora or fauna. For this reason, the Court found the reference method EPA utilized to derive the NNC to be arbitrary and capricious. In other words, EPA's method lacked a confirmation of biological harm, as the Florida rule mandates, before impairment may be determined. Such a decision was the cornerstone of TFI's legal case, as they focused on legal and scientific vulnerabilities of the streams standard (and this aspect of the rule was most important to affected entities). Additionally, this is a significant precedent because it may impact Federal water quality regulations elsewhere in the United States.
Because the Court upheld several of EPA's arguments, including a January 2009 determination that numeric nutrient criteria are necessary for Florida's waters, EPA will still have a voice in the implementation of criteria for streams. In this regard, the Agency can elect either to go back to the drawing board and propose new, presumably science-based criteria, or demonstrate how its now defunct criteria for streams prevents harmful biological imbalances. Should EPA decide to propose revised nutrient criteria, it has the option of choosing existing numeric nutrient criteria developed by Florida's Department of Environmental Protection (DEP). The court-ordered deadline for EPA's decision on this issue is May 21, 2012. A grassroots letter is being circulated to urge EPA Administrator Lisa Jackson to replace its rule with DEP's rule. The Court also sided with EPA on lakes and springs criteria, DPVs for impaired lakes, and the site-specific alternative criteria (SSAC), and it appears that those rules will go into effect on March 6th.
TFI's President Ford West indicated they were extremely pleased with the outcome of this litigation and the overall efforts of their litigation team lead by Crowell & Moring. "While we rarely seek the assistance of the court on our issues, we strongly believed that the potential harm EPA's NNC posed to Florida's phosphate industry and Florida agriculture along with the precedent setting nature of the EPA rule merited a legal challenge," said West. "The industry's success on this issue resulted from a unified effort from our industry."
MACA Names New Water Consultant
The Mid America CropLife Association (MACA) has named Steve Taylor as its new water consultant. Steve serves as President and Executive Director of the Missouri Agribusiness Association (MO-AG). Currently as part of his duties at MO-AG, Taylor engages in issues affecting the industry and works with several affiliated organizations. Steve will continue to serve as Executive Director of the Missouri Agribusiness Association as well. As the MACA Water Consultant, he provides research and information gathering services directed by MACA in crop protection matters, including the U.S. Geological Survey's National Water-Quality Assessment Program (USGS NAWQA) and the Great Lakes Initiative involving Canada and the Midwestern States. In addition, he monitors, reviews and assists MACA with respect to environmental concerns, in pending state management plans, legislative and executive branch proposals, laws, regulations and/or developments, which may affect MACA. Congratulations Steve!
OSHA Releases Regulatory Agenda
OSHA just released its semi-annual regulatory agenda, which reveals that two landmark rules, Hazard Communication and Confined Spaces in Construction standards, are approaching the final rulemaking stage. According to OSHA, the Hazard Communication Standard is slated for final action in February 2012 and the Confined Spaces in Construction rule will follow in June. In total, there are 11 final rules and five proposed rules that are projected to move forward through the rulemaking stages over the next year. In addition, OSHA is continuing its development of a rule requiring employers to implement an Injury and Illness Prevention Program. Click here to review the entire agenda.
U.S. Unemployment Data Excludes Millions Who Stopped Job Search
According to a report in the Washington Post, the drop in the U.S. unemployment rate, now at its lowest in three years, masks the fact that millions of unemployed people aren't counted because they've given up the search for work. The unemployment rate would be 9.9%, not 8.3%, if official statistics counted the 2.8 million people who stopped looking for jobs.
Illinois Issues with Flow Meters
The Illinois Department of Agriculture (IDOA) Weights & Measures regulations require all measuring and metering devices used for the sale of a product to a consumer be in conformance with the National Type Evaluation Program (NTEP). This has been a requirement of the regulations since the late 1980s. In our industry, there are some older flow/paddle/vein type meters used to measure liquid fertilizer or pesticides, and they are often calibrated by dispensing product into a container and weighing it on a certified scale. This practice, while sensible, does not strictly meet the regulatory requirement when larger quantities are dispensed into an applicator rig, unless the applicator can be taken over a truck scale. At many facilities, a truck scale is not present or the scale is not large enough to accommodate an applicator vehicle. Under this circumstance, the meters are not in compliance with the regulations. Only mass flow meters meet the NTEP requirements and many of the older flow/paddle/vein meters do not. IDOA recently conducted investigations in Northern Illinois regarding the use of these meters at fertilizer facilities. Jean Payne, President of the Illinois Fertilizer and Chemical Association (IFCA), met with IDOA and is working toward a reasonable solution to allow our industry to demonstrate compliance until we can arrive at a policy that phases in replacement of these older meters. If you have older paddle/vein/flow meters, be aware that this is an issue and that IFCA is working cooperatively with IDOA to resolve this in a manner for our members to achieve compliance, while recognizing the suddenness of this development and the financial implications of meter replacement.
EPA Seeks to Re-establish RMP Information Availability
On December 9th, EPA informed stakeholders of its intent to re-establish access via the internet to non off-site consequence analysis (OCA) sections of the Risk Management Plan (RMP) program. The Fertilizer Institute (TFI) recognized the concern surrounding this issue and has brought this matter to the attention of Representative Dan Lungren (R-California), Chairman, Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies, House Committee on Homeland Security. On February 16th, Representative Lungren sent a letter to EPA Administrator Lisa Jackson asking that this decision be reconsidered. We will keep you informed regarding this matter.
State Requirements for Medical Card/CDL Merger Rule Posted by AAMVA
Drivers must "self-certify" to the state indicating if they are subject to the federal rule. Starting January 30, 2012, and no later than January 30, 2014, all CDL holders must provide information to their state driver licensing agencies regarding the type of commercial motor vehicle operation they drive in or expect to drive in with their CDL. Drivers operating in certain types of commerce will be required to submit a current medical examiner's certificate to their licensing agency to obtain a "certified" medical status as part of their driving record. CDL holders required to have a "certified" medical status who fail to provide and keep up-to-date their medical examiner's certificate with their licensing agency, will become "not-certified" and they may lose their CDL. American Association of Motor Vehicle Administrators (AAMVA) has generated a table of state-by-state requirements for drivers and information related to how a state is handling the medical certification requirements, along with who to contact for additional information. Click here to visit the AAMVA site.
Do You Operate Interstate or Intrastate? (The answer may surprise you.)
This article is made possible by J.J. Keller & Associates, a valued partner of the Asmark Institute for over 23 years. Our thanks to J.J. Keller for their support over the years and for the use of this article.
It seems like a fairly straightforward issue. Interstate transportation involves a vehicle crossing borders and operating in two or more jurisdictions; if a truck never leaves a state, it must be performing intrastate motor carriage. Surprisingly, this is not always true. FMCSA provides the definition of interstate transportation in 49 CFR 390.5. Any evaluation of interstate or intrastate begins with this definition: Interstate commerce means trade, traffic, or transportation in the United States-
  1. Between a place in a State and a place outside of such State (including a place outside of the United States);
  2. Between two places in a State through another State or a place outside of the United States; or
  3. Between two places in a State as part of trade, traffic, or transportation originating or terminating outside the State or the United States.
The first two parts of this definition are pretty clear - a vehicle crossing a border means interstate commerce. It is the third part of the definition that complicates things - interstate commerce is trade, traffic, or transportation involving the crossing of a state boundary. When either the vehicle, its passengers, or cargo cross a state boundary, or there is intent to cross a state boundary, the carrier is considered an interstate carrier.
The FMCSA does offer some clarification with this guidance in 49 CFR 390.3 General Applicability:
Question 6: How does one distinguish between intra- and interstate commerce for the purposes of applicability of the FMCSRs?
Guidance: Interstate commerce is determined by the essential character of the movement, manifested by the shipper's fixed and persistent intent at the time of shipment, and is ascertained from all of the facts and circumstances surrounding the transportation. When the intent of the transportation being performed is interstate in nature, even when the route is within the boundaries of a single State, the driver and CMV are subject to the FMCSRs.
The bottom line is this: If your vehicles cross state lines, or if your vehicles transport cargo or passengers that have or will cross state lines, you are an interstate carrier, subject to compliance with the Federal Motor Carrier Safety Regulations. The Unified Carrier Registration Agreement (UCR) uses the same definition - if the vehicle, freight, or passengers cross states lines, it is an interstate vehicle subject to annual UCR registration.
However, when it comes to state taxation matters, such as vehicle licensing/IRP and fuel tax reporting/IFTA, the only consideration is where the vehicle itself travels. You may be operating vehicles that are intrastate as far as IRP and IFTA are concerned, but interstate for DOT safety and UCR compliance. Correctly classifying your operation will keep you in compliance.
Obama Makes Recess Appointments to Controversial NLRB
President Barack Obama used his recess appointment powers, placing two Democrats and one Republican on the National Labor Relations Board (NLRB). The NLRB lost its quorum when the term of Democrat Craig Becker (another recess appointee) expired. Under a 2010 U.S. Supreme Court decision, without a quorum the NLRB is unable to rule on cases or promulgate regulations. The controversial move by President Obama by-passes the Senate approval process and will allow the NLRB to continue operating. The appointees include former International Union of Operating Engineers General Counsel Richard Griffin, Labor Department Deputy Assistant Secretary for Congressional Affairs Sharon Block, and NLRB staff attorney Thomas Flynn. Griffin and Block are Democrats, while Flynn is a Republican. The three will join current Chairman Mark Pearce, a Democrat, and the board's sole Republican, Brian Hayes, to give the panel a 3-2 Democratic majority.
Revised Acetylene Standard Takes Effect March 5th
OSHA's direct final rule revising the Acetylene Standard for general industry goes into effect March 5th. The revised standard replaces a reference to an outdated consensus standard with an updated reference from the Compressed Gas Association Pamphlet G-1-2009, Acetylene. The update will provide employers with guidance that reflects current industry practices to better protect their workers from injury or death. In a December 5th Federal Register notice, OSHA announced the direct final rule would go into effect after three months, barring any significant adverse comments on the rule. OSHA received only one comment, which it determined was not a significant adverse comment. Click here to review the standard.
OSHA Cites Grain Facility in Ohio
OSHA cited a Coldwater grain facility with 13 safety violations for failing to ensure hazardous energy sources were secured, among other dangers. OSHA opened an inspection in September based on a complaint that a worker had suffered sprains, multiple lacerations and contusions as a result of having clothing become caught in a conveyor belt that had not been properly locked out prior to maintenance and cleaning activities. The Coldwater-based facility faces proposed fines of $112,000. Two willful violations with penalties of $70,000 have been cited for the employer's failure to develop and ensure machine-specific energy control procedures were used to control the flow of hazardous energy when workers were cleaning the conveyor system, which left them exposed to amputation and "caught-by" hazards. A willful violation is one committed with intentional, knowing or voluntary disregard for the law's requirement, or plain indifference to employee safety and health.
Seven serious safety violations with penalties of $38,000 involve the employer's failure to provide guarding around floor holes, provide adequate assessments to determine if personal protective equipment was required, provide training on lockout/tagout procedures for hazardous energy sources, guard machines and shaft ends, certify that a workplace hazard assessment was performed, provide workers with safety glasses while they were cleaning with compressed air, and use compressed air for cleaning at a pressure of less than 30 pounds per square inch. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.
Four other-than-serious violations with $4,000 in penalties involve failing to properly complete the OSHA 300 injury and illness log for the years 2008 through 2011. An other-than-serious violation is one that has a direct relationship to job safety and health, but probably would not cause death or serious physical injury. "Failing to develop and implement procedures to control hazardous energy by locking out equipment prior to cleaning operations exposes workers to amputation and caught-by hazards, and demonstrates this employer's lack of regard for workers' safety and health," said Kim Nelson, OSHA's area director in Toledo. "OSHA is committed to protecting workers on the job, especially when employers fail to do so." Prior to this inspection, the company had been inspected by OSHA five times since 2001, resulting in citations for 12 serious violations related to electrical safety, machine guarding and a lack of hazard communication.
2012 Asmark Institute, Inc. This information is believed to be reliable by the Asmark Institute, however, because of constantly changing government regulations, interpretations and applicability or the possibility of human, mechanical or computer error, the Asmark Institute does not guarantee the information as suitable for any particular purpose.