International Clients
Australia
Canada
South America
×
 
Main Menu
Select A Category
About Us
Hot Topics
International Clients
Resources
Training Centers
 
Back to Main Menu
Hot Topics
Consolidation Chart
Helping Your CDL Drivers...
How To Comply (CFATS)
Prepare for a DOT Audit
PSM for Ag Retailers
Restricted CDL Report
 
Back to Main Menu
International Clients
Australia
Canada
South America
 
<
 
List
 
>
Newsletter
Volume 108
November 1, 2012
New Compliance Wizard Launched
Halloween
The new Compliance Wizard was launched on Monday, October 29th to help streamline and improve data collection for the annual compliance visits. Designed and built by Megan Hill, Greg Woodall and Eric Rasor in our office, the Compliance Wizard is a web-based feature that utilizes logic to guide the user through the annual compliance visit process. It retains the familiar, yet eliminates the folders and postage to return the hard copy packets. By being a website function, the Compliance Wizard allows for more flexibility in completing the annual compliance visit submissions. Built-in checks and balances help ensure that all required reports are completed and accurate. Instructions on completing your annual compliance visit using the new Compliance Wizard are being sent, so watch your mail!
Donna Jones (ladybug) and Jessica Shely (bumblebee), our customer service team, will be available to help with any questions regarding the Compliance Wizard. We just happened to catch them celebrating Halloween before the annual compliance visits start. They can be contacted at 270-926-4600, Ext 205 (Donna) or Ext 229 (Jessica).
Exercise Your Right to Vote
The November election is now only days away. With the debates behind us, the race for control of the White House and Congress is in overdrive. We have a very close presidential election that will help shape the future direction of our federal government and the nation's economy. This year every U.S. Representative is up for re-election, as well as 33 Senate seats. Americans have the opportunity to make their voices heard by exercising their right to vote. Please make sure your co-workers, family members, friends, as well as yourself, exercises their right to vote. We encourage you to protect our industry's freedom to operate by electing pro-agribusiness candidates. Regardless of which political party or candidate you may support, it is important for every American to get politically involved and make sure their voice is heard by the candidates.
An Electoral College Vote Tie - Then What?
Analysts are kicking around two notions in the battle for the White House. The first is that one candidate will win the popular vote, but the other will win the Electoral College vote, an outcome not seen since George W. Bush was elected in 2000. The second notion - intriguing, but unlikely - is the current dead heat between President Obama and Mitt Romney could end in an electoral vote tie. Of the 338 votes in the Electoral College - apportioned based upon state populations - it takes 270 to win the presidency. After the November 6th election vote is tallied, the Electoral College meets on December 17th to vote. Only about half of the states, however, legally require their electors to vote based on their state's majority general election tally. So when the new Congress comes in on January 6, 2013, to ratify the Electoral College vote, and if it's tied, the 12th Amendment of the U.S. Constitution kicks in: The House will vote on the president; the Senate will vote on the vice president. In the House, each state delegation - not each member - gets one vote for president. Right now, the GOP controls 29 state delegations. In the Senate, each member gets a vote for vice president. If the Democrats maintain control of the Senate, it's possible in this unlikely scenario Mitt Romney could be elected president and Joe Biden could be reelected vice president. Congress has had to break an electoral tie three times in history - 1800 (Thomas Jefferson), 1824 (John Quincy Adams) and 1876 (Rutherford B. Hayes). The last time the U.S. had a president and vice president of different parties was in 1804.
Are You Monitoring Your CSA Score?
DOT's Comprehensive Safety Analysis (CSA) Safety Measurement System (SMS) website has been updated and motor carriers are highly recommended to check their safety assessment now at: http://ai.fmcsa.dot.gov/sms. Also available is FMCSA's SMS Preview website. Motor carriers can log in to the site to preview the first package of proposed changes to the SMS through two websites:
1. Visit the CSA Website (http://csa.fmcsa.dot.gov/smspreview/) and log in with an FMCSA-issued U.S. DOT number and a personal identification number (PIN), or
2. Log in to the FMCSA Portal (https://portal.fmcsa.dot.gov/login) and select the "CSA Outreach" link.
Note: To login into the SMS or SMS Preview websites and see all of your safety data, you will need an FMCSA-issued U.S. DOT Number Personal Identification Number (PIN). If you do not know or have forgotten your PIN, you can request one via http://safer.fmcsa.dot.gov/ and select "Click here to request your Docket Number PIN and/or USDOT Number PIN." Be sure to request a U.S. DOT Number PIN, NOT a Docket Number PIN.
Hours of Service Exemption Update
The Fertilizer Institute (TFI) and the Agricultural Retailers Association (ARA) have been made aware of two issues involving the new regulations for transportation under the agricultural hours of service exemption. As previously reported, the provisions contained in the Moving Ahead for Progress in the 21st Century (MAP-21) - Transforming the Way We Build, Maintain, and Manage Our Nation's Highways legislation (MAP-21) went into effect on October 1st.
1) The first issue involves what is required at the state level to accept the changes that took effect October 1st. According to DOT, although the MAP-21 changes went into effect on October 1st, states cannot begin to change state laws/regulations until FMCSA issues a formal "final rule." At that time, the clock begins for states to take action, and they have three years to take compatible action to remain eligible for Motor Carrier Safety Assistance Program (MCSAP) funding. The issue that has arisen is that some states have indicated that they will not recognize the new federal regulations until they have updated their state laws/regulations.
DOT is working to expedite the formal final rule and has strongly encouraged states to put policies into place in the interim. However, the final decision to put interim policies in place lies with the individual states. It is suggested that you contact your state agency in charge to determine how they intend to handle the new agricultural hours of service exemption.
2) The second issue involves the transportation of grain under the exemption. The National Grain and Feed Association (NGFA) contacted DOT regarding second-stage movements of grain. Grain could qualify under the exemption in two ways: (1) as an agricultural commodity from the farm to the elevator; or, (2) as a farm supply if it is further moved for processing as feed. It is important to remember that the purpose of the transportation must be in furtherance to agriculture. Non-agricultural moves are not authorized under the agricultural hours of service exemption.
FMCSR Adoption Map
DOT provided further explanation of applying the exemption to grain: "Just as with the currently-printed version of 49 CFR 395.1(k), the "second stage" transportation of agricultural commodities would be exempt from the hours-of-service regulations if the transportation takes place within a 150 air-mile (172.5 statute mile) radius of the source of the commodities. This is interpreted to be the original source, so the radius would be measured, for example, from the farm even though the second-stage movement might be from the grain elevator to another storage facility; i.e., both the grain elevator and the storage facility would have to be within 150 air-miles of the farm. Obviously, once the grain is co-mingled, it becomes impossible to determine the actual original source, so for all practical purposes the agricultural commodity exemption ends once the grain is moved from the farm to the elevator.
However, depending on the purpose of the transportation of the grain away from the elevator, it might come under the provision for exemption of farm supplies if the grain is being taken to feed livestock, for example. This starts a new first-stage movement of the grain as a farm supply (it was categorized as an agricultural commodity when brought from the farm to the elevator.)" - October 20, 2012
DHS - Personnel Surety Program Update
The Department of Homeland Security (DHS) officials and fellow industry representatives recently met to discuss the Personnel Surety Program (PSP) within the Chemical Facility Anti-Terrorism Standards (CFATS) program. Once in place, PSP will require vetting of employees, visitors and others with access to certain high risk chemical facilities through the Terrorist Screening Database (TSDB). During this meeting, participants received clarity on the applicability of PSP to facilities with different tier ratings.
This meeting will be the last formal outreach effort by DHS as they work to complete a revised Information Collection Request (ICR) for re-submission to the Office of Management and Budget in order to finalize the proposed rulemaking on PSP.
According to several participants representing our industry in the meeting, DHS indicated that PSP would only apply to facilities rated as Tier 1 or Tier 2. This could change at some point, but once the program is implemented, it will be phased in starting with those facilities that have an approved Site Security Plan (SSP). The determination regarding expansion of the program to Tier 3 and 4 facilities would likely come after the program has been up and running for some time. The proposed rule is still several weeks away from moving forward. Participants left the meeting with the feeling that DHS has come a long way from where this program was heading several months ago.
DOT Changes PSP Procedure
DOT has introduced an expanded version of its Pre-Employment Screening Program (PSP - not to be confused with the DHS - PSP), making it easier for more motor carriers, with the driver's consent, to access PSP records. A PSP record includes three years of crash history and five years of roadside inspection history for a commercial driver. PSP is now available to eligible intrastate motor carriers and companies directly involved in the pre-employment screening and hiring of commercial drivers. The program expansion means important driver safety data is now more easily available to companies that are responsible for hiring the drivers that get behind the wheel of many large trucks and buses. DOT has also launched an iPhone application for PSP. Account holders can now securely access a PSP dashboard on an iPhone or iPad, and easily review a PSP record in a mobile-friendly format. The application is available for free download by searching "DOT PSP" in the Apple iTunes store.
Agricultural Machinery Illumination Safety Act
On July 6, 2012, when President Obama signed into law the Moving Ahead for Progress in the 21st Century Act, aka Highway Funding Bill, many small manufacturers of farm equipment may not have been thinking about the text that appears on page 371 of the 584 page law. That's where you will find Subtitle F-Improved Daytime and Nighttime -- Visibility of Agricultural Equipment. This law requires the Secretary of Transportation, after consultation with representatives of the American Society of Agricultural and Biological Engineers and appropriate Federal agencies, and with other appropriate persons, to promulgate a rule to improve the daytime and nighttime visibility of agricultural equipment that may be operated on a public road. While the law gives the Secretary of Transportation the authority to set "minimum standards," it forbids any rule that would require the retrofitting of agricultural equipment that was manufactured before the date on which the lighting and marking standards become enforceable. Note the July 6, 2012 date will be one you hear more about in the future.
Monsanto Seed Patent Case Gets U.S. Supreme Court Review
The United States Supreme Court has elected to review a case involving Roundup Ready soybean seed and the legal interpretation of Monsanto's patent rights around those seed products. The Court will review a federal appeals court decision that Vernon Bowman (an Indiana farmer) infringed Monsanto's patents when he planted soybeans he had bought from a grain elevator. Those soybeans were the product of seeds covered by Monsanto's patents and Monsanto contends those rights extend to the second-generation beans. The case will likely be heard before the Supreme Court in 2013 and the outcome will be critical to the intellectual property protections of the entire agricultural biotechnology industry.
Trillions Needed to Deal with U.S. Infrastructure
The U.S. "has a $2.2 trillion backlog of infrastructure projects," according to Standard & Poor's Rating Services. In addition to road and bridge replacement, experts say hundreds of billions of dollars will be needed to upgrade ports, water and sewer systems and the electrical grid. Federal funding is likely to fall far short, leaving states to bear the burden.
OSHA's Top 10 Violations
OSHA's preliminary top 10 most frequently cited violations are much like a carousel - every year, the same offenders roll on by, only viewed in a slightly different order. The full list of top 10 most cited violations for federal OSHA standards for both general industry and construction includes:
  • Fall protection - 7,250 violations
  • Hazard communication - 4,696 violations
  • Scaffolding - 3,814 violations
  • Respiratory protection - 2,371 violations
  • Ladders - 2,310 violations
  • Machine guarding - 2,097 violations
  • Powered industrial trucks - 1,993 violations
  • Electrical wiring - 1,744 violations
  • Lockout/tagout - 1,572 violations
  • Electrical (general) - 1,332 violations
Food Safety Modernization Act - Biennial Registration
The Food Safety Modernization Act (FSMA) requires Biennial Registration for Food Facilities. FSMA requires the Bioterrorism Act registration to be renewed between the months of October and December of even-numbered years. With 2012 falling into that category, each facility must re-register between October and December of this year. This registration is required by the U.S. Food and Drug Administration and applies to domestic and foreign manufacturers, processors, packers or holders of food for human or animal consumption. Types of food companies required to re-register include grain-handling, feed manufacturing, grain processing, biofuels manufacturers, export facilities and a wide array of other domestic and foreign facilities that store, manufacture or process commodities used as food or feed in the United States. Food producers and manufacturers have long been required to register with the FDA. There is no fee to register or renew the registration of a food facility, and facilities can register online (click here), via mail or fax.
Survey Shows Lack of Eye Protection Use is Common
85 percent of industrial workers who participated in a Kimberly-Clark professional survey said they had observed others failing to wear eye protection when they should have been. Data from the Bureau of Labor Statistics shows that nearly three out of five injured workers were not wearing eye protection at the time of the accident or were wearing the wrong kind of eye protection for the job. On-the-job eye injuries can have devastating consequences, such as chemical burns or blindness. The results are very disconcerting when you consider that 90 percent of eye injuries can be prevented through the use of proper protective eyewear. Enhancing eyewear practices is critical to creating Exceptional Workplaces-those that are safe, healthy and productive for all employees.
In many instances, uncomfortable eyewear or fogged lenses attribute to the lack of compliance. How can compliance be improved? Greater comfort and fog-free lenses could help, according to the survey results. When asked what would most improve compliance with eye protection protocols, the top choice was more comfortable eyewear-with features like flexible, comfortable nose pieces (56 percent) followed by fog-free lenses (22 percent).
Appeals Court Finds Reassignment a Reasonable Accommodation Under ADA
Employers may need to reassign disabled workers into vacant jobs for which they are qualified, a federal appeals court said. A September 7th decision by the U.S. Court of Appeals for the Seventh Circuit Court overturned precedent to agree with the U.S. Equal Employment Opportunity Commission (EEOC) that "reasonable accommodation" as defined by the Americans with Disabilities Act (ADA) may require employers to provide employees with disabilities with "reassignment to a vacant position" when the employee cannot be accommodated in his or her current position. The case has been sent back to the district judge for review of the airline's policy. The Seventh Circuit Court has jurisdiction over courts in Illinois, Indiana and Wisconsin.
Workplace Hazard Assessment - Heads Up!
OSHA has stepped-up its inspection and enforcement activity in the past two years on the Workplace Hazard Assessment. Under this rule, employers must assess the workplace to determine if hazards are present, or are likely to be present, which require employees to use personal protective equipment. If any hazards are present, or likely to be present, and they can't be eliminated, the employer must:
  • Select and have each affected employee use the types of PPE that will protect him/her from the hazards identified in the assessment.
  • Select PPE that properly fits each affected employee.
  • Discuss your PPE selections with your employees.
  • Train your employees to use and maintain the PPE correctly.
Employers must verify that the required workplace hazard assessment was done through a written certification that identifies the:
  • Job site evaluated.
  • Person certifying that the evaluation was done.
  • Date(s) of the hazard assessment.
What are you looking for during the assessment?
Potential hazards may be physical or health-related. Examples of physical hazards may include moving objects, weather-related hazards, fall hazards, pinch points, electrical hazards and sharp edges. Examples of health hazards include overexposure to harmful dusts, chemicals or radiation. The hazards assessment usually begins with a walk-around survey of the jobsite to develop a list of potential hazards. If asked to help conduct a hazard assessment, look for the following things during the walk-around survey:
  • Sources of electricity.
  • Sources of motion that could result in an impact between workers and equipment.
  • Sources of high temperatures that could result in burns, eye injuries or fire.
  • Types of chemicals used at the jobsite.
  • Sources of harmful gases, vapors, fumes, dusts or mists.
  • Sources of light radiation, such as welders and lasers.
  • The potential for falls or the need for falling object protection.
  • Sharp objects that could poke, cut, stab or puncture.
  • Biologic hazards such as blood or other potentially infectious material.
  • General housekeeping.
When the walk-around is complete, you should organize and analyze your findings to use in determining jobsite PPE requirements. It's a good idea to select PPE that will provide a level of protection greater than the minimum required. You should periodically reassess the jobsite, looking for changes in conditions, equipment or operating procedures that could change the hazards. This periodic reassessment should also include a review of injury and illness records to spot any trends or areas of concern. Appropriate corrective action is critical. The suitability of existing PPE, including an evaluation of its condition and age, should be included in the reassessment.
Note: The Asmark Institute is currently developing an online Workplace PPE Hazard Assessment that will assist agricultural businesses in completing and documenting this OSHA requirement. The new tool allows users to create a hazard assessment for a workplace, individual employee or category of employees. The tool will store the information for update and retrieval later. Watch for it to launch in November 2012.
The Fine Print of FIFRA: The Definition of "Pest"
FIFRA § 2(t)(1) defines "pest" as follows: "(1) any insect, rodent, nematode, fungus, weed or (2) any other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other micro-organism (except viruses, bacteria, or other micro-organisms on or in living man or other living animals) which the Administrator declares to be a pest under section 25(c)(1)." An organism is a pest under circumstances that makes it deleterious to man or the environment, if such organism is the following:
  1. Any vertebrate animal other than man;
  2. Any invertebrate animal, including but not limited to: any insect, other arthropod, nematode, or mollusk such as a slug or snail, but excluding any internal parasite of living man or other living animals;
  3. Any plant growing where not wanted, including any moss, algae, liverwort, or other plant of any higher order, and any plant part such as a root; or
  4. Any fungus, bacterium, virus, or other microorganisms, except for those on or in processed food or processed animal feed, beverages, drugs (as defined in FFDCA sec. 201(g)(1)) and cosmetics (as defined in FFDCA sec. 201(i)).
According to CropLife America, not every substance that controls or mitigates a pest is a pesticide; only a substance that is "intended" to control or mitigate is a pesticide. Thus, central to FIFRA's definition of a pesticide, is whether the person intends for the substance to be a pesticide when he or she sells or distributes it.
California Could Be Example for Fertilizer Use Assistance
California Governor Jerry Brown signed a bill (AB 2174) the last week of August that would allow technical assistance projects to be eligible as a category of funding under the Fertilizer Research and Education Program (FREP) of the California Department of Food and Agriculture. FREP was established 20 years ago to address nitrate contamination from agricultural sources in groundwater. FREP is funded by an assessment on fertilizers. The program offers grants for research, education and now, technical assistance projects. The idea is to promote more efficient use of fertilizer so as not to cause groundwater contamination.
Earlier this year, a report from the University of California was released indicating that agriculture was responsible for more than 95 percent of the nitrate groundwater contamination in the Tulare Lake Basin and Salinas Valley. According to the report, the four-county Tulare Lake Basin and the Monterey County portion of the Salinas Valley were examined. About 2.6 million people in these regions rely on groundwater for drinking water. The study area includes four of the nation's five counties with the largest agricultural production. It represents about 40 percent of California's irrigated cropland (including 80 different crops) and more than half of California's dairy herd. Many communities in the area are among the poorest in California and have limited economic means or technical capacity to maintain safe drinking water, given threats from nitrate and other contaminants.
Within the study area, human-generated nitrate sources to groundwater include:
  • Cropland (96 percent of total), where nitrogen is applied to crops, but not removed by harvest, air emission, or runoff, is leached from the root zone to groundwater. Nitrogen intentionally or incidentally applied to cropland includes synthetic fertilizer (54 percent), animal manure (33 percent), irrigation source water (8 percent), atmospheric deposition (3 percent), and wastewater treatment and food processing facility effluent and associated solids (2 percent);
  • Percolation of wastewater treatment plant (WWTP) and food processing (FP) wastes (1.5 percent of total);
  • Leachate from septic system drainfields (1 percent of total);
  • Urban parks, lawns, golf courses, and leaky sewer systems (less than 1 percent of total);
  • Recharge from animal corrals and manure storage lagoons (less than 1 percent of total); and
  • Downward migration of nitrate-contaminated water via wells (less than 1 percent of total).
The new technical assistance funding will help translate research findings into real-world assistance for growers so they can better address nutrient management issues. The approval of this bill will allow the University of California Cooperative Extension, local Resource Conservation Districts, nonprofits and others, to apply for funding for projects that help growers develop nutrient management plans. In addition, the bill will help fund technical education for fertilizer users and research to improve nutrient management practices to help minimize the environmental impact of fertilizer use, including greenhouse gases and nitrates in the groundwater.
The University of California report released this summer stressed the importance of reducing the impact of fertilizer in the groundwater. Funding for research into better ways to use fertilizer is critical for this state. How California deals with this challenge could be applicable to states in the Corn Belt that surround the Mississippi River, which is also under scrutiny for nitrate loads. Click here to read more about the University of California report.
Most Quotable: "I have one yardstick by which I test every major problem -- and that yardstick is: Is it good for America?" -- Dwight D. Eisenhower, 34th U.S. President
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.
New Compliance Wizard Launched
Halloween
The new Compliance Wizard was launched on Monday, October 29th to help streamline and improve data collection for the annual compliance visits. Designed and built by Megan Hill, Greg Woodall and Eric Rasor in our office, the Compliance Wizard is a web-based feature that utilizes logic to guide the user through the annual compliance visit process. It retains the familiar, yet eliminates the folders and postage to return the hard copy packets. By being a website function, the Compliance Wizard allows for more flexibility in completing the annual compliance visit submissions. Built-in checks and balances help ensure that all required reports are completed and accurate. Instructions on completing your annual compliance visit using the new Compliance Wizard are being sent, so watch your mail!
Donna Jones (ladybug) and Jessica Shely (bumblebee), our customer service team, will be available to help with any questions regarding the Compliance Wizard. We just happened to catch them celebrating Halloween before the annual compliance visits start. They can be contacted at 270-926-4600, Ext 205 (Donna) or Ext 229 (Jessica).
Exercise Your Right to Vote
The November election is now only days away. With the debates behind us, the race for control of the White House and Congress is in overdrive. We have a very close presidential election that will help shape the future direction of our federal government and the nation's economy. This year every U.S. Representative is up for re-election, as well as 33 Senate seats. Americans have the opportunity to make their voices heard by exercising their right to vote. Please make sure your co-workers, family members, friends, as well as yourself, exercises their right to vote. We encourage you to protect our industry's freedom to operate by electing pro-agribusiness candidates. Regardless of which political party or candidate you may support, it is important for every American to get politically involved and make sure their voice is heard by the candidates.
An Electoral College Vote Tie - Then What?
Analysts are kicking around two notions in the battle for the White House. The first is that one candidate will win the popular vote, but the other will win the Electoral College vote, an outcome not seen since George W. Bush was elected in 2000. The second notion - intriguing, but unlikely - is the current dead heat between President Obama and Mitt Romney could end in an electoral vote tie. Of the 338 votes in the Electoral College - apportioned based upon state populations - it takes 270 to win the presidency. After the November 6th election vote is tallied, the Electoral College meets on December 17th to vote. Only about half of the states, however, legally require their electors to vote based on their state's majority general election tally. So when the new Congress comes in on January 6, 2013, to ratify the Electoral College vote, and if it's tied, the 12th Amendment of the U.S. Constitution kicks in: The House will vote on the president; the Senate will vote on the vice president. In the House, each state delegation - not each member - gets one vote for president. Right now, the GOP controls 29 state delegations. In the Senate, each member gets a vote for vice president. If the Democrats maintain control of the Senate, it's possible in this unlikely scenario Mitt Romney could be elected president and Joe Biden could be reelected vice president. Congress has had to break an electoral tie three times in history - 1800 (Thomas Jefferson), 1824 (John Quincy Adams) and 1876 (Rutherford B. Hayes). The last time the U.S. had a president and vice president of different parties was in 1804.
Are You Monitoring Your CSA Score?
DOT's Comprehensive Safety Analysis (CSA) Safety Measurement System (SMS) website has been updated and motor carriers are highly recommended to check their safety assessment now at: http://ai.fmcsa.dot.gov/sms. Also available is FMCSA's SMS Preview website. Motor carriers can log in to the site to preview the first package of proposed changes to the SMS through two websites:
1. Visit the CSA Website (http://csa.fmcsa.dot.gov/smspreview/) and log in with an FMCSA-issued U.S. DOT number and a personal identification number (PIN), or
2. Log in to the FMCSA Portal (https://portal.fmcsa.dot.gov/login) and select the "CSA Outreach" link.
Note: To login into the SMS or SMS Preview websites and see all of your safety data, you will need an FMCSA-issued U.S. DOT Number Personal Identification Number (PIN). If you do not know or have forgotten your PIN, you can request one via http://safer.fmcsa.dot.gov/ and select "Click here to request your Docket Number PIN and/or USDOT Number PIN." Be sure to request a U.S. DOT Number PIN, NOT a Docket Number PIN.
Hours of Service Exemption Update
The Fertilizer Institute (TFI) and the Agricultural Retailers Association (ARA) have been made aware of two issues involving the new regulations for transportation under the agricultural hours of service exemption. As previously reported, the provisions contained in the Moving Ahead for Progress in the 21st Century (MAP-21) - Transforming the Way We Build, Maintain, and Manage Our Nation's Highways legislation (MAP-21) went into effect on October 1st.
1) The first issue involves what is required at the state level to accept the changes that took effect October 1st. According to DOT, although the MAP-21 changes went into effect on October 1st, states cannot begin to change state laws/regulations until FMCSA issues a formal "final rule." At that time, the clock begins for states to take action, and they have three years to take compatible action to remain eligible for Motor Carrier Safety Assistance Program (MCSAP) funding. The issue that has arisen is that some states have indicated that they will not recognize the new federal regulations until they have updated their state laws/regulations.
DOT is working to expedite the formal final rule and has strongly encouraged states to put policies into place in the interim. However, the final decision to put interim policies in place lies with the individual states. It is suggested that you contact your state agency in charge to determine how they intend to handle the new agricultural hours of service exemption.
2) The second issue involves the transportation of grain under the exemption. The National Grain and Feed Association (NGFA) contacted DOT regarding second-stage movements of grain. Grain could qualify under the exemption in two ways: (1) as an agricultural commodity from the farm to the elevator; or, (2) as a farm supply if it is further moved for processing as feed. It is important to remember that the purpose of the transportation must be in furtherance to agriculture. Non-agricultural moves are not authorized under the agricultural hours of service exemption.
FMCSR Adoption Map
DOT provided further explanation of applying the exemption to grain: "Just as with the currently-printed version of 49 CFR 395.1(k), the "second stage" transportation of agricultural commodities would be exempt from the hours-of-service regulations if the transportation takes place within a 150 air-mile (172.5 statute mile) radius of the source of the commodities. This is interpreted to be the original source, so the radius would be measured, for example, from the farm even though the second-stage movement might be from the grain elevator to another storage facility; i.e., both the grain elevator and the storage facility would have to be within 150 air-miles of the farm. Obviously, once the grain is co-mingled, it becomes impossible to determine the actual original source, so for all practical purposes the agricultural commodity exemption ends once the grain is moved from the farm to the elevator.
However, depending on the purpose of the transportation of the grain away from the elevator, it might come under the provision for exemption of farm supplies if the grain is being taken to feed livestock, for example. This starts a new first-stage movement of the grain as a farm supply (it was categorized as an agricultural commodity when brought from the farm to the elevator.)" - October 20, 2012
DHS - Personnel Surety Program Update
The Department of Homeland Security (DHS) officials and fellow industry representatives recently met to discuss the Personnel Surety Program (PSP) within the Chemical Facility Anti-Terrorism Standards (CFATS) program. Once in place, PSP will require vetting of employees, visitors and others with access to certain high risk chemical facilities through the Terrorist Screening Database (TSDB). During this meeting, participants received clarity on the applicability of PSP to facilities with different tier ratings.
This meeting will be the last formal outreach effort by DHS as they work to complete a revised Information Collection Request (ICR) for re-submission to the Office of Management and Budget in order to finalize the proposed rulemaking on PSP.
According to several participants representing our industry in the meeting, DHS indicated that PSP would only apply to facilities rated as Tier 1 or Tier 2. This could change at some point, but once the program is implemented, it will be phased in starting with those facilities that have an approved Site Security Plan (SSP). The determination regarding expansion of the program to Tier 3 and 4 facilities would likely come after the program has been up and running for some time. The proposed rule is still several weeks away from moving forward. Participants left the meeting with the feeling that DHS has come a long way from where this program was heading several months ago.
DOT Changes PSP Procedure
DOT has introduced an expanded version of its Pre-Employment Screening Program (PSP - not to be confused with the DHS - PSP), making it easier for more motor carriers, with the driver's consent, to access PSP records. A PSP record includes three years of crash history and five years of roadside inspection history for a commercial driver. PSP is now available to eligible intrastate motor carriers and companies directly involved in the pre-employment screening and hiring of commercial drivers. The program expansion means important driver safety data is now more easily available to companies that are responsible for hiring the drivers that get behind the wheel of many large trucks and buses. DOT has also launched an iPhone application for PSP. Account holders can now securely access a PSP dashboard on an iPhone or iPad, and easily review a PSP record in a mobile-friendly format. The application is available for free download by searching "DOT PSP" in the Apple iTunes store.
Agricultural Machinery Illumination Safety Act
On July 6, 2012, when President Obama signed into law the Moving Ahead for Progress in the 21st Century Act, aka Highway Funding Bill, many small manufacturers of farm equipment may not have been thinking about the text that appears on page 371 of the 584 page law. That's where you will find Subtitle F-Improved Daytime and Nighttime -- Visibility of Agricultural Equipment. This law requires the Secretary of Transportation, after consultation with representatives of the American Society of Agricultural and Biological Engineers and appropriate Federal agencies, and with other appropriate persons, to promulgate a rule to improve the daytime and nighttime visibility of agricultural equipment that may be operated on a public road. While the law gives the Secretary of Transportation the authority to set "minimum standards," it forbids any rule that would require the retrofitting of agricultural equipment that was manufactured before the date on which the lighting and marking standards become enforceable. Note the July 6, 2012 date will be one you hear more about in the future.
Monsanto Seed Patent Case Gets U.S. Supreme Court Review
The United States Supreme Court has elected to review a case involving Roundup Ready soybean seed and the legal interpretation of Monsanto's patent rights around those seed products. The Court will review a federal appeals court decision that Vernon Bowman (an Indiana farmer) infringed Monsanto's patents when he planted soybeans he had bought from a grain elevator. Those soybeans were the product of seeds covered by Monsanto's patents and Monsanto contends those rights extend to the second-generation beans. The case will likely be heard before the Supreme Court in 2013 and the outcome will be critical to the intellectual property protections of the entire agricultural biotechnology industry.
Trillions Needed to Deal with U.S. Infrastructure
The U.S. "has a $2.2 trillion backlog of infrastructure projects," according to Standard & Poor's Rating Services. In addition to road and bridge replacement, experts say hundreds of billions of dollars will be needed to upgrade ports, water and sewer systems and the electrical grid. Federal funding is likely to fall far short, leaving states to bear the burden.
OSHA's Top 10 Violations
OSHA's preliminary top 10 most frequently cited violations are much like a carousel - every year, the same offenders roll on by, only viewed in a slightly different order. The full list of top 10 most cited violations for federal OSHA standards for both general industry and construction includes:
  • Fall protection - 7,250 violations
  • Hazard communication - 4,696 violations
  • Scaffolding - 3,814 violations
  • Respiratory protection - 2,371 violations
  • Ladders - 2,310 violations
  • Machine guarding - 2,097 violations
  • Powered industrial trucks - 1,993 violations
  • Electrical wiring - 1,744 violations
  • Lockout/tagout - 1,572 violations
  • Electrical (general) - 1,332 violations
Food Safety Modernization Act - Biennial Registration
The Food Safety Modernization Act (FSMA) requires Biennial Registration for Food Facilities. FSMA requires the Bioterrorism Act registration to be renewed between the months of October and December of even-numbered years. With 2012 falling into that category, each facility must re-register between October and December of this year. This registration is required by the U.S. Food and Drug Administration and applies to domestic and foreign manufacturers, processors, packers or holders of food for human or animal consumption. Types of food companies required to re-register include grain-handling, feed manufacturing, grain processing, biofuels manufacturers, export facilities and a wide array of other domestic and foreign facilities that store, manufacture or process commodities used as food or feed in the United States. Food producers and manufacturers have long been required to register with the FDA. There is no fee to register or renew the registration of a food facility, and facilities can register online (click here), via mail or fax.
Survey Shows Lack of Eye Protection Use is Common
85 percent of industrial workers who participated in a Kimberly-Clark professional survey said they had observed others failing to wear eye protection when they should have been. Data from the Bureau of Labor Statistics shows that nearly three out of five injured workers were not wearing eye protection at the time of the accident or were wearing the wrong kind of eye protection for the job. On-the-job eye injuries can have devastating consequences, such as chemical burns or blindness. The results are very disconcerting when you consider that 90 percent of eye injuries can be prevented through the use of proper protective eyewear. Enhancing eyewear practices is critical to creating Exceptional Workplaces-those that are safe, healthy and productive for all employees.
In many instances, uncomfortable eyewear or fogged lenses attribute to the lack of compliance. How can compliance be improved? Greater comfort and fog-free lenses could help, according to the survey results. When asked what would most improve compliance with eye protection protocols, the top choice was more comfortable eyewear-with features like flexible, comfortable nose pieces (56 percent) followed by fog-free lenses (22 percent).
Appeals Court Finds Reassignment a Reasonable Accommodation Under ADA
Employers may need to reassign disabled workers into vacant jobs for which they are qualified, a federal appeals court said. A September 7th decision by the U.S. Court of Appeals for the Seventh Circuit Court overturned precedent to agree with the U.S. Equal Employment Opportunity Commission (EEOC) that "reasonable accommodation" as defined by the Americans with Disabilities Act (ADA) may require employers to provide employees with disabilities with "reassignment to a vacant position" when the employee cannot be accommodated in his or her current position. The case has been sent back to the district judge for review of the airline's policy. The Seventh Circuit Court has jurisdiction over courts in Illinois, Indiana and Wisconsin.
Workplace Hazard Assessment - Heads Up!
OSHA has stepped-up its inspection and enforcement activity in the past two years on the Workplace Hazard Assessment. Under this rule, employers must assess the workplace to determine if hazards are present, or are likely to be present, which require employees to use personal protective equipment. If any hazards are present, or likely to be present, and they can't be eliminated, the employer must:
  • Select and have each affected employee use the types of PPE that will protect him/her from the hazards identified in the assessment.
  • Select PPE that properly fits each affected employee.
  • Discuss your PPE selections with your employees.
  • Train your employees to use and maintain the PPE correctly.
Employers must verify that the required workplace hazard assessment was done through a written certification that identifies the:
  • Job site evaluated.
  • Person certifying that the evaluation was done.
  • Date(s) of the hazard assessment.
What are you looking for during the assessment?
Potential hazards may be physical or health-related. Examples of physical hazards may include moving objects, weather-related hazards, fall hazards, pinch points, electrical hazards and sharp edges. Examples of health hazards include overexposure to harmful dusts, chemicals or radiation. The hazards assessment usually begins with a walk-around survey of the jobsite to develop a list of potential hazards. If asked to help conduct a hazard assessment, look for the following things during the walk-around survey:
  • Sources of electricity.
  • Sources of motion that could result in an impact between workers and equipment.
  • Sources of high temperatures that could result in burns, eye injuries or fire.
  • Types of chemicals used at the jobsite.
  • Sources of harmful gases, vapors, fumes, dusts or mists.
  • Sources of light radiation, such as welders and lasers.
  • The potential for falls or the need for falling object protection.
  • Sharp objects that could poke, cut, stab or puncture.
  • Biologic hazards such as blood or other potentially infectious material.
  • General housekeeping.
When the walk-around is complete, you should organize and analyze your findings to use in determining jobsite PPE requirements. It's a good idea to select PPE that will provide a level of protection greater than the minimum required. You should periodically reassess the jobsite, looking for changes in conditions, equipment or operating procedures that could change the hazards. This periodic reassessment should also include a review of injury and illness records to spot any trends or areas of concern. Appropriate corrective action is critical. The suitability of existing PPE, including an evaluation of its condition and age, should be included in the reassessment.
Note: The Asmark Institute is currently developing an online Workplace PPE Hazard Assessment that will assist agricultural businesses in completing and documenting this OSHA requirement. The new tool allows users to create a hazard assessment for a workplace, individual employee or category of employees. The tool will store the information for update and retrieval later. Watch for it to launch in November 2012.
The Fine Print of FIFRA: The Definition of "Pest"
FIFRA § 2(t)(1) defines "pest" as follows: "(1) any insect, rodent, nematode, fungus, weed or (2) any other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other micro-organism (except viruses, bacteria, or other micro-organisms on or in living man or other living animals) which the Administrator declares to be a pest under section 25(c)(1)." An organism is a pest under circumstances that makes it deleterious to man or the environment, if such organism is the following:
  1. Any vertebrate animal other than man;
  2. Any invertebrate animal, including but not limited to: any insect, other arthropod, nematode, or mollusk such as a slug or snail, but excluding any internal parasite of living man or other living animals;
  3. Any plant growing where not wanted, including any moss, algae, liverwort, or other plant of any higher order, and any plant part such as a root; or
  4. Any fungus, bacterium, virus, or other microorganisms, except for those on or in processed food or processed animal feed, beverages, drugs (as defined in FFDCA sec. 201(g)(1)) and cosmetics (as defined in FFDCA sec. 201(i)).
According to CropLife America, not every substance that controls or mitigates a pest is a pesticide; only a substance that is "intended" to control or mitigate is a pesticide. Thus, central to FIFRA's definition of a pesticide, is whether the person intends for the substance to be a pesticide when he or she sells or distributes it.
California Could Be Example for Fertilizer Use Assistance
California Governor Jerry Brown signed a bill (AB 2174) the last week of August that would allow technical assistance projects to be eligible as a category of funding under the Fertilizer Research and Education Program (FREP) of the California Department of Food and Agriculture. FREP was established 20 years ago to address nitrate contamination from agricultural sources in groundwater. FREP is funded by an assessment on fertilizers. The program offers grants for research, education and now, technical assistance projects. The idea is to promote more efficient use of fertilizer so as not to cause groundwater contamination.
Earlier this year, a report from the University of California was released indicating that agriculture was responsible for more than 95 percent of the nitrate groundwater contamination in the Tulare Lake Basin and Salinas Valley. According to the report, the four-county Tulare Lake Basin and the Monterey County portion of the Salinas Valley were examined. About 2.6 million people in these regions rely on groundwater for drinking water. The study area includes four of the nation's five counties with the largest agricultural production. It represents about 40 percent of California's irrigated cropland (including 80 different crops) and more than half of California's dairy herd. Many communities in the area are among the poorest in California and have limited economic means or technical capacity to maintain safe drinking water, given threats from nitrate and other contaminants.
Within the study area, human-generated nitrate sources to groundwater include:
  • Cropland (96 percent of total), where nitrogen is applied to crops, but not removed by harvest, air emission, or runoff, is leached from the root zone to groundwater. Nitrogen intentionally or incidentally applied to cropland includes synthetic fertilizer (54 percent), animal manure (33 percent), irrigation source water (8 percent), atmospheric deposition (3 percent), and wastewater treatment and food processing facility effluent and associated solids (2 percent);
  • Percolation of wastewater treatment plant (WWTP) and food processing (FP) wastes (1.5 percent of total);
  • Leachate from septic system drainfields (1 percent of total);
  • Urban parks, lawns, golf courses, and leaky sewer systems (less than 1 percent of total);
  • Recharge from animal corrals and manure storage lagoons (less than 1 percent of total); and
  • Downward migration of nitrate-contaminated water via wells (less than 1 percent of total).
The new technical assistance funding will help translate research findings into real-world assistance for growers so they can better address nutrient management issues. The approval of this bill will allow the University of California Cooperative Extension, local Resource Conservation Districts, nonprofits and others, to apply for funding for projects that help growers develop nutrient management plans. In addition, the bill will help fund technical education for fertilizer users and research to improve nutrient management practices to help minimize the environmental impact of fertilizer use, including greenhouse gases and nitrates in the groundwater.
The University of California report released this summer stressed the importance of reducing the impact of fertilizer in the groundwater. Funding for research into better ways to use fertilizer is critical for this state. How California deals with this challenge could be applicable to states in the Corn Belt that surround the Mississippi River, which is also under scrutiny for nitrate loads. Click here to read more about the University of California report.
Most Quotable: "I have one yardstick by which I test every major problem -- and that yardstick is: Is it good for America?" -- Dwight D. Eisenhower, 34th U.S. President
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.