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Newsletter
Volume 111
February 4, 2013
Spotlight: Signature Training Schedules Announced
The Grain and Feed Association of Illinois (GFAI) and the Asmark Institute have partnered to provide a series of high-quality, hands-on training to the personnel within the agricultural industry who handle grain. Click here for information or to register for two new courses starting February 26-28th. Click here to register for the 2013 Professional Applicator Training (PAT) dates that have been posted for March and April. The schedule has been posted through the end of the year for the Ammonia Technician Course. Click here to see the schedule or to register for the Ammonia Technician Course.
Reminder: Time to Post Your 300A
It's time to complete your 2012 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.
Don't Forget the March 1st Deadline
As a reminder worth mentioning, 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. We believe it is prudent to remind our clients of the upcoming deadline. 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
Reminder: Asmark Institute submits and documents receipt of the Pesticide Production Report by U.S. EPA for each of our clients. All clients' reports are currently out for signature and should be returned as soon as possible. Nick Clements is handling this process for us again this year. Plans are to file all final reports on schedule to be received by U.S. EPA by Friday, March 1st.
Performance Evaluation Results......THANKS!!!
Everyone knows the feeling you had as a kid when you were opening your Report Card. We have to admit that we flinch every time our performance evaluation is mailed, especially given our line of work. Seriously, we feel very strongly the evaluation process is an important communication tool that helps our clients guide our services. Response so far has exceeded an impressive 60%, with 95.9% of the total respondents indicating they are Satisfied with our overall performance. More than 55% of the respondents identified themselves or their facility. This adds so much credibility to the comments, because we actively follow-up on both positive and negative comments, and many times ask for more information on ideas and suggestions. Click here to see a copy of the tabulated results for the past five Performance Evaluations.
Inherently Safer Technologies (IST) Legislation Raised Once Again
Senator Frank Lautenberg (D-NJ) has re-introduced his legislation affecting facilities regulated by the DHS's Chemical Facility Anti-Terrorism Standards Program (CFATS). The Secure Chemical Facilities Act is nearly identical to the legislation Senator Lautenberg introduced in the last session of Congress. Among other things, the bill would require CFATS facility managers to "assess methods to reduce the consequences of a terrorist attack," which means consider inherently safer technologies (IST) or processes, as part of the facility's Site Security Plan. Implementation of safer technologies or processes would be required of CFATS facilities in Tier 1 or Tier 2. Just like the similar bill he introduced in the last Congress, this bill is not expected to advance.
DOT Revises Hours of Service Q & A
Agricultural exemptions to the Hours of Service rules have been in the spotlight recently with no shortage of confusion. DOT has put together a new "Questions and Answers" document related to the new changes in the Hours of Service exemption for agriculture and also new provisions for other agricultural movements by farm vehicles. Click here for the most recent Q & A provided by DOT.
New DOT Regulations to Watch for 2013
There is a new round of DOT rules that go into effect this year and motor carriers should take particular note of the rules to make sure they are prepared. Here's rundown on the new rules:
Drug and Alcohol Clearinghouse: This rule creates a central database for verified positive controlled substances and alcohol test results for commercial driver's license (CDL) holders and includes refusals by such drivers to submit to testing. April 2013 is the expected publication date.
Medical Examiner's Certification Integration: This rule requires certified medical examiners performing physical examinations on drivers of commercial motor vehicles (CMV) to use a newly developed Medical Examination Report (MER) Form and transmit information from the Medical Examiner's Certificate electronically from the national registry system to the State Driver Licensing Agencies (SDLAs). May 2013 is the expected publication date.
Electronic Logging Devices and Hours of Service Supporting Documents: This rule establishes minimum performance standards for electronic logging devices (ELDs) and requirements for the mandatory use of the devices by drivers currently required to prepare handwritten records of duty status. July 2013 is the expected publication date.
Web-Distributed Labeling Issue Raised Once Again
In the January 16, 2013 issue of the Federal Register, EPA announced they are seeking public comment on a draft Pesticide Registration Notice titled "Web-Distributed Labeling for Pesticide Products." PR Notices are issued by the Office of Pesticide Programs to inform pesticide registrants and other interested persons about important policies, procedures and registration related decisions, and serve to provide guidance to pesticide registrants and OPP personnel. This particular draft PR Notice provides guidance concerning the process by which registrants can make legally valid versions of pesticide labeling available through the Internet. Industry, including the Agricultural Retailers Association (ARA), CropLife America (CLA) and now The Fertilizer Institute, has raised serious concerns with this EPA proposal and questions its need given existing private sector systems. The Fertilizer Institute has raised concern that although this action is aimed towards pesticides, most nitrification inhibitors are required to be registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Therefore, this notice has the potential to impact manufacturers of slow release fertilizer products that now may be subject to FIFRA regulation. Comments are due April 16, 2013. The draft PR Notice will be available in the online docket at www.regulations.gov, under Docket Number EPA-HQ-OPP-2012-0906. Click here to review the PR Notice.
IL OSHA Settlement Brings Potential Changes to Sweep Auger Interpretation
In a recent legal settlement, OSHA has incorporated a set of sweep auger safety principles that will allow employees to work inside of a grain bin while a "guarded" auger is operating. These new principles potentially could serve as national guidance for how to perform sweep auger operations in accordance with the grain handling standard. While this agreement was approved by the OSHA National Office, OSHA  Settlement and Sweep Augerthe 2009 letter of interpretation has not been officially withdrawn or replaced by a new guidance document. As a result, it is not certain yet whether these principles will be applied in the other OSHA regions.
Attorneys at the law firm of Epstein Becker & Green represented a major grain handler in Illinois that contested sweep auger citations it had received. The end result was a settlement that incorporated a set of "Ten Sweep Auger Safety Principles," which if satisfied, OSHA would allow an employee to work inside a grain bin with an energized sweep auger.
The "Ten Sweep Auger Safety Principles" were sent to OSHA's National Office in Washington, where they were reviewed and approved for purposes of at least this specific settlement. According to OSHA's area director and regional administrator, the OSHA National Office authorized publication of the 10 principles for the industry's benefit. Below is the list of Sweep Auger Safety Principles that OSHA, at the National Office Level, has agreed to as guidance to the industry for how to perform sweep auger operations in compliance with the grain handling standard:
  1. No employee shall enter a grain bin until after completion of a bin entry permit, which confirms there are no engulfment and/or atmospheric hazards present inside the storage bin, or unless the employer or the employer's representative who would otherwise authorize the permit remains present during the entire entry. The grain bin hazard evaluation shall be completed by a qualified person.
  2. Before entering the bin to set up or dig out the sweep auger, the subfloor auger and the grain entry points must be de-energized and locked out.
  3. Before operating the sweep auger, the grate/guard on the sub-floor auger must be in place and secured.
  4. Employees operating the sweep auger cannot walk on the grain, if the depth of the grain presents engulfment hazard.
  5. It shall require that the sweep auger is provided with guards and covers per the manufacturers' design, and the only unguarded portion of the sweep auger is the point of operation.
  6. A rescue trained and equipped observer, in accordance with 1910.272(g), must always be positioned outside the storage bin monitoring the activities of all workers inside the bin.
  7. If a worker is to enter the bin while the sweep auger is energized, the employer must utilize engineering controls within the grain bin to prevent workers from coming into contact with the energized sweep auger. The use of only administrative controls without the use of an engineering control is not a sufficient means of worker protection. Acceptable engineering controls may include:
    1. Sweep auger equipped with an attached guard, which prevents the workers contact with the unguarded portion of the auger in accordance with 1910 subpart O.
    2. Sweep auger equipped with a control mechanism, such as a dead-man switch or other similar device, which will allow for the sweep auger's operation only when the operator is in contact with device. If this method is utilized as a means of worker protection, the worker must be positioned at least seven feet from the auger at all times it is energized; moreover, if worker(s) in addition to the operator of the sweep auger are in the bin, additional engineering controls (such as those described in section 7 of this criteria) must be used to protect those worker(s).
    3. Portable guardrails are permissible, provided they are placed at least seven feet behind the sweep auger. Note: the use of a warning line, or other easily removable device, other than a portable guardrail, is not considered sufficient engineering controls.
  8. The auger must be provided with a positive speed control mechanism or bin stop device that prevents the uncontrolled rotation of the sweep auger.
  9. Workers are prohibited from using their hands, legs other similar means to manipulate the sweep auger while it is operating.
  10. If maintenance/adjustments are necessary to the sweep auger, the sweep must be unplugged, with the person making the adjustments maintaining the control of the plug, or locked-out in accordance with lock-out/tag-out procedures.
OSHA Forecast: Developments to Watch For In 2013
Heavy-handed enforcement will continue to trend up according to the watchdog groups that monitor the regulatory environment. They cite during President Obama's first term in office, OSHA consistently increased enforcement in every measureable way, year after year, and there is every reason to believe that trend will continue. OSHA's budget increased early in President Obama's first term, and that allowed OSHA to hire more than 100 new compliance officers. The agency also redirected most of the resources and personnel who had formerly been involved in compliance assistance and cooperative programs into enforcement. As a result of this big increase in enforcement personnel, we saw the number of inspections increase from averages in the mid-30,000's during the Bush Administration to the mid-40,000's through President Obama's first term. The trend of increasing enforcement personnel and increasing inspections will continue.
Kansas Department of Agriculture Proposes Changes to Anhydrous Ammonia Program
According to the Kansas Agribusiness Retailers Association (KARA), our affiliate in Kansas, they and staff members from the Kansas Cooperative Council have been meeting with the Kansas Department of Agriculture (KDA) regarding proposed changes for regulating anhydrous ammonia. Some details are yet to be worked out, but the broader concept can be shared at this time.
It is expected that KDA will maintain jurisdiction over anhydrous ammonia and assume jurisdiction over pressurized anhydrous vessels previously held by the Kansas Department of Labor (KDL). This is the cornerstone of the program and an important tenet for the agribusiness industry. KDA's continued oversight helps ensure uniform treatment of anhydrous ammonia across the state. KARA indicated this was a critical component for their members that state-level oversight be maintained.
It is expected the proposed regulatory program will encompass adoption of national standards regarding pressure vessels and requirements for adequate levels of liability insurance. Although KDA will maintain the authority for anhydrous inspections, they do not plan to continue their annual examinations, as insurance carriers regularly examine tanks and facilities. Upon proof of insurance, KDA will issue tank owners a permit authorizing the tank to be filled. This permit to fill will function similarly to the old "decal" and, as with the decal, it will be unlawful to fill a tank that does not have this label. The label will be required on all tanks, whether at an agribusiness or on-farm location. KDA will pursue civil penalty authority as an enforcement mechanism.
Agribusinesses with railcar tanks or tanks lacking data plates that have worked with the KDA's affidavit program and received authorization to use such tanks will be able to continue to use them under the terms previously approved by KDA. If you have railcar tanks or other tanks lacking data plates, we encourage you to contact KDA immediately and pursue authorization so you may be "grandfathered in" once the new regulatory framework is adopted. Thanks to Tom Tunnell and the KARA staff that have worked on this issue on behalf of their members.
Training Temporary Workers Source of OSHA Settlement
The MacMillin Company, a Keene, N.H.-based contractor, has reached a settlement with OSHA to correct all cited hazards and pay a $100,000 fine in connection with the September 2011 death of a worker who fell 27 feet at a construction site. In addition to correcting cited conditions and paying the fine, the company will now provide the same level of training to its temporary workers as it does to its permanent staff, and sponsor presentations on fall protection training for those erecting and dismantling scaffolding. Click here to read the full news release.
North Dakota to Drop Ammonia Tank Lock Rule
The North Dakota Agriculture Department (NDAD) says they are ready to rescind a 2003 law requiring farmers to place locks on anhydrous ammonia tank valves when the tanks are left unattended. It is believed to be one of the few such laws in the country, adopted in an attempt to crack down on ammonia being used to make methamphetamine. The program was originally implemented in Williams and McKenzie counties in the northwestern portion of the state. "The administrative rule was adopted by the commissioner in 2003 due to a high rate in theft of anhydrous ammonia in those two counties as a pilot program to see how it works," said Spencer Wagner, fertilizer specialist with (NDAD). "After some discussion with law enforcement and the attorney general's office, we proposed to repeal the existing law. It's a hard rule to enforce, and we've come up with some new regulations to curb meth use. For example, we still train people to look for keys when theft occurs." State reports also indicated the old law was never enforced, and the $100 fine for a first offense was never levied. Officials are less concerned about the theft of NH3 for meth production since the state placed restrictions on the sale of over-the-counter pseudoephedrine, a key component of meth. Since then, the state's criminal charges for meth manufacture have dropped from about 300 in 2003 to less than 10 in 2010.
Indiana Issues New Fertilizer Application Rules
The Office of the Indiana State Chemist (OISC) has issued new fertilizer application regulations to ensure proper nutrient management and protect farmers and the environment. The rules, effective February 16th, include staging and application restrictions for both chemical fertilizers and manure, and apply to anyone using fertilizers for producing an agricultural crop. Those applying less than 10 cubic yards in a year are not covered. Large permitted livestock operations that perform liquid nutrient applications already fall under the Indiana Department of Environmental Management's Confined Feeding Operation laws. The new rule, however, extends to smaller producers mostly applying solid manure. "This is really a common-sense approach to nutrient management and preserving the environment," said OISC's Ron Lemenager. "Most of our livestock producers already are doing these things, so the rule shouldn't be a significant burden." The new rule requires both fertilizers and manure to be staged at least 300 feet away from surface water, water wells and drainage inlets. Neither can be staged in a waterway, floodway or in standing water. Manure must also be staged at least 100 feet from property lines and public roads, and 400 feet from residential buildings. Fertilizers cannot be applied directly to water, from a public road or to saturated ground. Setback restrictions for manure application depend on type and application method. Solid manure applied via single-pass incorporation must be applied 500 feet from public water supplies, 25 feet from surface waters, 25 feet from sinkholes, 50 feet from water wells and 5 feet from drainage inlets.
Department of Labor Initiative Affects Florida's Agricultural Industry
An ongoing enforcement initiative conducted by the U.S. Department of Labor's Wage and Hour Division that focused on the agricultural industry in central Florida has uncovered widespread violations of the Fair Labor Standards Act, the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and the field sanitation standards of the Occupational Safety and Health Act. Under this initiative, the division's Tampa District Office conducted 144 investigations of agricultural industry employers in 2012, recovering more than $135,000 in back wages for 926 workers and assessing approximately $228,000 in civil money penalties. "Our investigations have uncovered egregious labor violations in Florida's agricultural industry-violations that cause many vulnerable workers to suffer substandard wages, unsafe housing and transportation, and harsh working conditions," said James Schmidt, director of the Wage and Hour Division's Tampa District office. Most employees engaged in agriculture are covered by federal law because they produce goods for interstate commerce. Most agricultural employers, agricultural associations and farm labor contractors are subject to the MSPA, which protects migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures and record keeping.
Sheets Named Director of Indiana State Department of Agriculture
Governor Mike Pence has named Gina Sheets as head of Indiana's State Department of Agriculture (ISDA). Sheets most recently served as Director of Economic Development and International Trade at ISDA. Gina and her husband Travis own a farm in Clinton County where they raise pasture poultry, free range hens, pasture beef, rainbow trout and a variety of produce. Sheets graduated from Stanislaus State University (CA) and the University of Oklahoma Economic Development Institute.
What does it mean to "provide" employees with PPE? - OSHRC Ruling...
In a case that became final on December 20, 2012, the Occupational Safety and Health Review Commission (OSHRC) reversed a lower administrative ruling vacating a violation of 29 C.F.R. §1926.102(a)(1), which requires an employer to "provide" personal protective equipment (PPE) to employees. The case involved a jackhammer at a construction site where an employee and supervisor were not wearing safety glasses during operations, and the OSHA inspector observed concrete flying during the jackhammer's operation. Safety glasses were made available by the employer, but neither the employee nor the supervisor chose to wear them. The administrative ruling concluded that the word "provide" in 1926.102(a)(1) is not ambiguous "and it is commonly understood to mean 'furnish' or 'make available,'" and therefore an employer's obligation only required the furnishing of PPE. The OSHA Review Commission, however, disagreed and reinstated the citation. Chairman Rogers and Commissioner Attwood held that, when read in conjunction with the entire PPE subpart, 29 CFR 1926.102(a)(1) requires "use" of the PPE by employees. Click here to read the full OSHA Review Commission decision.
Just Don't Do It!
Despite a few states legalizing the use of recreational marijuana in the last Presidential election, drivers operating commercial motor vehicles remain subject to the Federal substance abuse (drug testing) rules and should refrain from engaging in any activity that would produce a positive drug test result. There is no shortage of mis-information today that would lead a driver to believe the drug testing requirements have changed in those states.
Iowa CDL Holders Have Online Resource
The Iowa Department of Transportation (IDOT) recently announced a new online service to help CDL holders comply with new regulations. "MyMVD Self-Certification and Medical Examiner's Certificate" service is available online 24/7 for use by busy drivers. By no later than January 30, 2014, all CDL holders must provide information to IDOT about the type of commercial motor vehicle operation they drive or expect to drive with their CDL. Drivers operating in certain types of commerce are also required to submit a current Medical Examiner's Certificate (physical card) to IDOT to obtain a "certified" medical status as part of their driving record. Failure by a person to provide and keep up-to-date their Medical Examiner's Certificate with IDOT will result in the loss of the CDL, downgrading it to a noncommercial license. IDOT wants to help CDL holders meet the federal deadline and encourages them to use the online service:
  1. Go to: mymvd.iowadot.gov
  2. Enter your name, date of birth, last five digits of your social security number and Iowa driver's license number.
  3. Select the "Self-Certification and Medical Examiner's Certificate" application.
  4. Select the type of commercial motor vehicle operation you drive in or expect to drive in with your CDL. Based on your selection, you will or will not be required to provide a copy of a valid Medical Examiner's Certificate. If a certificate is required, instructions will be provided for emailing, faxing or mailing the form to IDOT.
For drivers that don't have online access:
For drivers whose license expires between now and January 30, 2014, go to the driver's license station when it is time for your CDL to be renewed. The clerk will ask you to declare the type of commercial motor vehicle operation you intend to perform. If it falls into a certain category, you will be asked to provide your Medical Examiner's Certificate so that it can be scanned and saved with your driver record.
For drivers whose license does not expire until after January 30, 2014, you must go to an Iowa driver's license issuance location before January 30, 2014. The clerk will ask you to declare the type of commercial motor vehicle operation you intend to perform. If it falls into a certain category, you will be asked to provide your Medical Examiner's Certificate so that it can be scanned and saved with your driver record.
Until the federal program is fully implemented on January 30, 2014, a driver must still carry an original or copy of his or her Medical Examiner's Certificate and provide a copy to his or her employer for individual's driver qualification file. After January 30, 2014, a driver's Medical Examiner's Certificate will be recorded on the individual's driving record and it becomes the valid version of the certificate. An unexpired certificate must always be part of a CDL holder's driving record after this date. If a driver's certificate is about to expire, he or she must have a new medical examination and obtain a new medical certificate. The driver must then provide the new certificate to IDOT.
ATA Touts Using Hair Samples for Drug Testing
American Trucking Associations (ATA) is in favor of a recent bill requiring DOT to conduct a pilot program to evaluate the use of hair samples to test commercial drivers for illicit drug use. "For many years, ATA has supported improving drug and alcohol testing procedures for commercial drivers," ATA President and CEO Bill Graves said. "From advocating for the first drug and alcohol test standards, to pushing for the creation of a clearinghouse of drug and alcohol test results, to ensure fleets are hiring only safe, clean drivers, ATA has been at the front of the process improvement line." Graves says "research and experience shows that sampling hair can be much more effective than current, conventional sampling and testing methods."
EPA Finalizes Industrial Large Boiler Air Emissions Rule
After nearly a decade of wrangling and court actions, EPA recently published its final rule controlling air emissions from large industrial boilers at oil refineries, manufacturing plants and chemical production facilities. The rules, with an effective date of 2016, are designed to limit the emissions of mercury, acid gases and fine particulate matter, with total mercury emissions expected to drop 3% initially, EPA said. With three years to come up to the new standards - and the option of an additional year if requested - EPA said compliance should be relatively easy for most of the 2,300 regulated facilities affected by the rule, based on size and operations. It's still estimated, however, industry will spend $1.3-1.5 billion annually to comply with the new rules. The agency first tried to set boiler emission standards in 2004, but that set of rules was killed by a federal court in 2007, which said it violated the Clean Air Act (CAA). The proposed rule was reissued in 2011, but industry opposition and congressional pressure forced the agency to reconsider and rewrite the rule after gathering more industry data.
New Year Requires Revisions to FCRA
Employers must update the Fair Credit Reporting Act Notices used in their background check programs. Effective January 1, 2013, employers must use a new Fair Credit Reporting Act (FCRA) Summary of Rights form as part of their background check programs. The FCRA requires the Summary of Rights to be included: (1) as an enclosure with the pre-adverse action notice, which is sent when an employer decides to take an adverse action, based in whole or in part, on a consumer report; and (2) with the disclosure necessary to obtain "investigative consumer reports," which are consumer reports based on personal interviews conducted by a consumer reporting agency.
J. J. Keller Celebrates 60 Years of Helping Companies with Compliance
Our congratulations go out to J. J. Keller & Associates, Inc. as 2013 marks their 60th Anniversary of being the nation's most-trusted source for DOT compliance solutions. J.J. Keller & Associates has been a valued partner of the Asmark Institute for over 23 years. John "Jack" Keller established the company in downtown Neenah, Wisconsin in 1953, as a one-man regulatory consulting, warehousing and insurance underwriting operation. As government regulations evolved and new compliance challenges materialized, the company kept pace with new product and service offerings, building a solid reputation for providing companies in a variety of industries with solutions that help them manage safety and regulatory compliance.
"Over the years, we have seen markets develop and grow, and we've adapted accordingly," said Robert Keller, Chairman of J. J. Keller. "We believe we have contributed positively to that growth and development by helping companies meet their safety and compliance goals and by supplying the industries we serve with cutting edge products and services that, as a whole, are unsurpassed by any other provider." "Throughout the years, we've promoted a number of core values among our associates," said James Keller, President/CEO. "Today J. J. Keller associates continue to deliver these important values through quality products, dedicated customer service and innovative thinking."
Along with growing the company, Jack and Ethel Keller made it their personal mission to give back to the community. In 1990, Jack established the J. J. Keller Foundation in honor of Ethel's 70th birthday. This private, independent family foundation provides charitable funding to many worthwhile organizations, especially those addressing the causes and consequences of poverty in the neighboring communities. To date, gifts and commitments from the Foundation and funding programs have totaled more than $35 million. J. J. Keller and its associates also support numerous charitable endeavors, such as Habitat for Humanity, United Way, Boy Scouts, Catalpa Health and other benevolent work in the community.
Most Quotable: "The problem with socialism is that eventually you run out of other people's money to spend." -- Margaret Thatcher, the longest-serving Prime Minister of the United Kingdom of the 20th century, and the only woman ever to have held the post.
2013 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.
Spotlight: Signature Training Schedules Announced
The Grain and Feed Association of Illinois (GFAI) and the Asmark Institute have partnered to provide a series of high-quality, hands-on training to the personnel within the agricultural industry who handle grain. Click here for information or to register for two new courses starting February 26-28th. Click here to register for the 2013 Professional Applicator Training (PAT) dates that have been posted for March and April. The schedule has been posted through the end of the year for the Ammonia Technician Course. Click here to see the schedule or to register for the Ammonia Technician Course.
Reminder: Time to Post Your 300A
It's time to complete your 2012 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.
Don't Forget the March 1st Deadline
As a reminder worth mentioning, 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. We believe it is prudent to remind our clients of the upcoming deadline. 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
Reminder: Asmark Institute submits and documents receipt of the Pesticide Production Report by U.S. EPA for each of our clients. All clients' reports are currently out for signature and should be returned as soon as possible. Nick Clements is handling this process for us again this year. Plans are to file all final reports on schedule to be received by U.S. EPA by Friday, March 1st.
Performance Evaluation Results......THANKS!!!
Everyone knows the feeling you had as a kid when you were opening your Report Card. We have to admit that we flinch every time our performance evaluation is mailed, especially given our line of work. Seriously, we feel very strongly the evaluation process is an important communication tool that helps our clients guide our services. Response so far has exceeded an impressive 60%, with 95.9% of the total respondents indicating they are Satisfied with our overall performance. More than 55% of the respondents identified themselves or their facility. This adds so much credibility to the comments, because we actively follow-up on both positive and negative comments, and many times ask for more information on ideas and suggestions. Click here to see a copy of the tabulated results for the past five Performance Evaluations.
Inherently Safer Technologies (IST) Legislation Raised Once Again
Senator Frank Lautenberg (D-NJ) has re-introduced his legislation affecting facilities regulated by the DHS's Chemical Facility Anti-Terrorism Standards Program (CFATS). The Secure Chemical Facilities Act is nearly identical to the legislation Senator Lautenberg introduced in the last session of Congress. Among other things, the bill would require CFATS facility managers to "assess methods to reduce the consequences of a terrorist attack," which means consider inherently safer technologies (IST) or processes, as part of the facility's Site Security Plan. Implementation of safer technologies or processes would be required of CFATS facilities in Tier 1 or Tier 2. Just like the similar bill he introduced in the last Congress, this bill is not expected to advance.
DOT Revises Hours of Service Q & A
Agricultural exemptions to the Hours of Service rules have been in the spotlight recently with no shortage of confusion. DOT has put together a new "Questions and Answers" document related to the new changes in the Hours of Service exemption for agriculture and also new provisions for other agricultural movements by farm vehicles. Click here for the most recent Q & A provided by DOT.
New DOT Regulations to Watch for 2013
There is a new round of DOT rules that go into effect this year and motor carriers should take particular note of the rules to make sure they are prepared. Here's rundown on the new rules:
Drug and Alcohol Clearinghouse: This rule creates a central database for verified positive controlled substances and alcohol test results for commercial driver's license (CDL) holders and includes refusals by such drivers to submit to testing. April 2013 is the expected publication date.
Medical Examiner's Certification Integration: This rule requires certified medical examiners performing physical examinations on drivers of commercial motor vehicles (CMV) to use a newly developed Medical Examination Report (MER) Form and transmit information from the Medical Examiner's Certificate electronically from the national registry system to the State Driver Licensing Agencies (SDLAs). May 2013 is the expected publication date.
Electronic Logging Devices and Hours of Service Supporting Documents: This rule establishes minimum performance standards for electronic logging devices (ELDs) and requirements for the mandatory use of the devices by drivers currently required to prepare handwritten records of duty status. July 2013 is the expected publication date.
Web-Distributed Labeling Issue Raised Once Again
In the January 16, 2013 issue of the Federal Register, EPA announced they are seeking public comment on a draft Pesticide Registration Notice titled "Web-Distributed Labeling for Pesticide Products." PR Notices are issued by the Office of Pesticide Programs to inform pesticide registrants and other interested persons about important policies, procedures and registration related decisions, and serve to provide guidance to pesticide registrants and OPP personnel. This particular draft PR Notice provides guidance concerning the process by which registrants can make legally valid versions of pesticide labeling available through the Internet. Industry, including the Agricultural Retailers Association (ARA), CropLife America (CLA) and now The Fertilizer Institute, has raised serious concerns with this EPA proposal and questions its need given existing private sector systems. The Fertilizer Institute has raised concern that although this action is aimed towards pesticides, most nitrification inhibitors are required to be registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Therefore, this notice has the potential to impact manufacturers of slow release fertilizer products that now may be subject to FIFRA regulation. Comments are due April 16, 2013. The draft PR Notice will be available in the online docket at www.regulations.gov, under Docket Number EPA-HQ-OPP-2012-0906. Click here to review the PR Notice.
IL OSHA Settlement Brings Potential Changes to Sweep Auger Interpretation
In a recent legal settlement, OSHA has incorporated a set of sweep auger safety principles that will allow employees to work inside of a grain bin while a "guarded" auger is operating. These new principles potentially could serve as national guidance for how to perform sweep auger operations in accordance with the grain handling standard. While this agreement was approved by the OSHA National Office, OSHA  Settlement and Sweep Augerthe 2009 letter of interpretation has not been officially withdrawn or replaced by a new guidance document. As a result, it is not certain yet whether these principles will be applied in the other OSHA regions.
Attorneys at the law firm of Epstein Becker & Green represented a major grain handler in Illinois that contested sweep auger citations it had received. The end result was a settlement that incorporated a set of "Ten Sweep Auger Safety Principles," which if satisfied, OSHA would allow an employee to work inside a grain bin with an energized sweep auger.
The "Ten Sweep Auger Safety Principles" were sent to OSHA's National Office in Washington, where they were reviewed and approved for purposes of at least this specific settlement. According to OSHA's area director and regional administrator, the OSHA National Office authorized publication of the 10 principles for the industry's benefit. Below is the list of Sweep Auger Safety Principles that OSHA, at the National Office Level, has agreed to as guidance to the industry for how to perform sweep auger operations in compliance with the grain handling standard:
  1. No employee shall enter a grain bin until after completion of a bin entry permit, which confirms there are no engulfment and/or atmospheric hazards present inside the storage bin, or unless the employer or the employer's representative who would otherwise authorize the permit remains present during the entire entry. The grain bin hazard evaluation shall be completed by a qualified person.
  2. Before entering the bin to set up or dig out the sweep auger, the subfloor auger and the grain entry points must be de-energized and locked out.
  3. Before operating the sweep auger, the grate/guard on the sub-floor auger must be in place and secured.
  4. Employees operating the sweep auger cannot walk on the grain, if the depth of the grain presents engulfment hazard.
  5. It shall require that the sweep auger is provided with guards and covers per the manufacturers' design, and the only unguarded portion of the sweep auger is the point of operation.
  6. A rescue trained and equipped observer, in accordance with 1910.272(g), must always be positioned outside the storage bin monitoring the activities of all workers inside the bin.
  7. If a worker is to enter the bin while the sweep auger is energized, the employer must utilize engineering controls within the grain bin to prevent workers from coming into contact with the energized sweep auger. The use of only administrative controls without the use of an engineering control is not a sufficient means of worker protection. Acceptable engineering controls may include:
    1. Sweep auger equipped with an attached guard, which prevents the workers contact with the unguarded portion of the auger in accordance with 1910 subpart O.
    2. Sweep auger equipped with a control mechanism, such as a dead-man switch or other similar device, which will allow for the sweep auger's operation only when the operator is in contact with device. If this method is utilized as a means of worker protection, the worker must be positioned at least seven feet from the auger at all times it is energized; moreover, if worker(s) in addition to the operator of the sweep auger are in the bin, additional engineering controls (such as those described in section 7 of this criteria) must be used to protect those worker(s).
    3. Portable guardrails are permissible, provided they are placed at least seven feet behind the sweep auger. Note: the use of a warning line, or other easily removable device, other than a portable guardrail, is not considered sufficient engineering controls.
  8. The auger must be provided with a positive speed control mechanism or bin stop device that prevents the uncontrolled rotation of the sweep auger.
  9. Workers are prohibited from using their hands, legs other similar means to manipulate the sweep auger while it is operating.
  10. If maintenance/adjustments are necessary to the sweep auger, the sweep must be unplugged, with the person making the adjustments maintaining the control of the plug, or locked-out in accordance with lock-out/tag-out procedures.
OSHA Forecast: Developments to Watch For In 2013
Heavy-handed enforcement will continue to trend up according to the watchdog groups that monitor the regulatory environment. They cite during President Obama's first term in office, OSHA consistently increased enforcement in every measureable way, year after year, and there is every reason to believe that trend will continue. OSHA's budget increased early in President Obama's first term, and that allowed OSHA to hire more than 100 new compliance officers. The agency also redirected most of the resources and personnel who had formerly been involved in compliance assistance and cooperative programs into enforcement. As a result of this big increase in enforcement personnel, we saw the number of inspections increase from averages in the mid-30,000's during the Bush Administration to the mid-40,000's through President Obama's first term. The trend of increasing enforcement personnel and increasing inspections will continue.
Kansas Department of Agriculture Proposes Changes to Anhydrous Ammonia Program
According to the Kansas Agribusiness Retailers Association (KARA), our affiliate in Kansas, they and staff members from the Kansas Cooperative Council have been meeting with the Kansas Department of Agriculture (KDA) regarding proposed changes for regulating anhydrous ammonia. Some details are yet to be worked out, but the broader concept can be shared at this time.
It is expected that KDA will maintain jurisdiction over anhydrous ammonia and assume jurisdiction over pressurized anhydrous vessels previously held by the Kansas Department of Labor (KDL). This is the cornerstone of the program and an important tenet for the agribusiness industry. KDA's continued oversight helps ensure uniform treatment of anhydrous ammonia across the state. KARA indicated this was a critical component for their members that state-level oversight be maintained.
It is expected the proposed regulatory program will encompass adoption of national standards regarding pressure vessels and requirements for adequate levels of liability insurance. Although KDA will maintain the authority for anhydrous inspections, they do not plan to continue their annual examinations, as insurance carriers regularly examine tanks and facilities. Upon proof of insurance, KDA will issue tank owners a permit authorizing the tank to be filled. This permit to fill will function similarly to the old "decal" and, as with the decal, it will be unlawful to fill a tank that does not have this label. The label will be required on all tanks, whether at an agribusiness or on-farm location. KDA will pursue civil penalty authority as an enforcement mechanism.
Agribusinesses with railcar tanks or tanks lacking data plates that have worked with the KDA's affidavit program and received authorization to use such tanks will be able to continue to use them under the terms previously approved by KDA. If you have railcar tanks or other tanks lacking data plates, we encourage you to contact KDA immediately and pursue authorization so you may be "grandfathered in" once the new regulatory framework is adopted. Thanks to Tom Tunnell and the KARA staff that have worked on this issue on behalf of their members.
Training Temporary Workers Source of OSHA Settlement
The MacMillin Company, a Keene, N.H.-based contractor, has reached a settlement with OSHA to correct all cited hazards and pay a $100,000 fine in connection with the September 2011 death of a worker who fell 27 feet at a construction site. In addition to correcting cited conditions and paying the fine, the company will now provide the same level of training to its temporary workers as it does to its permanent staff, and sponsor presentations on fall protection training for those erecting and dismantling scaffolding. Click here to read the full news release.
North Dakota to Drop Ammonia Tank Lock Rule
The North Dakota Agriculture Department (NDAD) says they are ready to rescind a 2003 law requiring farmers to place locks on anhydrous ammonia tank valves when the tanks are left unattended. It is believed to be one of the few such laws in the country, adopted in an attempt to crack down on ammonia being used to make methamphetamine. The program was originally implemented in Williams and McKenzie counties in the northwestern portion of the state. "The administrative rule was adopted by the commissioner in 2003 due to a high rate in theft of anhydrous ammonia in those two counties as a pilot program to see how it works," said Spencer Wagner, fertilizer specialist with (NDAD). "After some discussion with law enforcement and the attorney general's office, we proposed to repeal the existing law. It's a hard rule to enforce, and we've come up with some new regulations to curb meth use. For example, we still train people to look for keys when theft occurs." State reports also indicated the old law was never enforced, and the $100 fine for a first offense was never levied. Officials are less concerned about the theft of NH3 for meth production since the state placed restrictions on the sale of over-the-counter pseudoephedrine, a key component of meth. Since then, the state's criminal charges for meth manufacture have dropped from about 300 in 2003 to less than 10 in 2010.
Indiana Issues New Fertilizer Application Rules
The Office of the Indiana State Chemist (OISC) has issued new fertilizer application regulations to ensure proper nutrient management and protect farmers and the environment. The rules, effective February 16th, include staging and application restrictions for both chemical fertilizers and manure, and apply to anyone using fertilizers for producing an agricultural crop. Those applying less than 10 cubic yards in a year are not covered. Large permitted livestock operations that perform liquid nutrient applications already fall under the Indiana Department of Environmental Management's Confined Feeding Operation laws. The new rule, however, extends to smaller producers mostly applying solid manure. "This is really a common-sense approach to nutrient management and preserving the environment," said OISC's Ron Lemenager. "Most of our livestock producers already are doing these things, so the rule shouldn't be a significant burden." The new rule requires both fertilizers and manure to be staged at least 300 feet away from surface water, water wells and drainage inlets. Neither can be staged in a waterway, floodway or in standing water. Manure must also be staged at least 100 feet from property lines and public roads, and 400 feet from residential buildings. Fertilizers cannot be applied directly to water, from a public road or to saturated ground. Setback restrictions for manure application depend on type and application method. Solid manure applied via single-pass incorporation must be applied 500 feet from public water supplies, 25 feet from surface waters, 25 feet from sinkholes, 50 feet from water wells and 5 feet from drainage inlets.
Department of Labor Initiative Affects Florida's Agricultural Industry
An ongoing enforcement initiative conducted by the U.S. Department of Labor's Wage and Hour Division that focused on the agricultural industry in central Florida has uncovered widespread violations of the Fair Labor Standards Act, the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and the field sanitation standards of the Occupational Safety and Health Act. Under this initiative, the division's Tampa District Office conducted 144 investigations of agricultural industry employers in 2012, recovering more than $135,000 in back wages for 926 workers and assessing approximately $228,000 in civil money penalties. "Our investigations have uncovered egregious labor violations in Florida's agricultural industry-violations that cause many vulnerable workers to suffer substandard wages, unsafe housing and transportation, and harsh working conditions," said James Schmidt, director of the Wage and Hour Division's Tampa District office. Most employees engaged in agriculture are covered by federal law because they produce goods for interstate commerce. Most agricultural employers, agricultural associations and farm labor contractors are subject to the MSPA, which protects migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures and record keeping.
Sheets Named Director of Indiana State Department of Agriculture
Governor Mike Pence has named Gina Sheets as head of Indiana's State Department of Agriculture (ISDA). Sheets most recently served as Director of Economic Development and International Trade at ISDA. Gina and her husband Travis own a farm in Clinton County where they raise pasture poultry, free range hens, pasture beef, rainbow trout and a variety of produce. Sheets graduated from Stanislaus State University (CA) and the University of Oklahoma Economic Development Institute.
What does it mean to "provide" employees with PPE? - OSHRC Ruling...
In a case that became final on December 20, 2012, the Occupational Safety and Health Review Commission (OSHRC) reversed a lower administrative ruling vacating a violation of 29 C.F.R. §1926.102(a)(1), which requires an employer to "provide" personal protective equipment (PPE) to employees. The case involved a jackhammer at a construction site where an employee and supervisor were not wearing safety glasses during operations, and the OSHA inspector observed concrete flying during the jackhammer's operation. Safety glasses were made available by the employer, but neither the employee nor the supervisor chose to wear them. The administrative ruling concluded that the word "provide" in 1926.102(a)(1) is not ambiguous "and it is commonly understood to mean 'furnish' or 'make available,'" and therefore an employer's obligation only required the furnishing of PPE. The OSHA Review Commission, however, disagreed and reinstated the citation. Chairman Rogers and Commissioner Attwood held that, when read in conjunction with the entire PPE subpart, 29 CFR 1926.102(a)(1) requires "use" of the PPE by employees. Click here to read the full OSHA Review Commission decision.
Just Don't Do It!
Despite a few states legalizing the use of recreational marijuana in the last Presidential election, drivers operating commercial motor vehicles remain subject to the Federal substance abuse (drug testing) rules and should refrain from engaging in any activity that would produce a positive drug test result. There is no shortage of mis-information today that would lead a driver to believe the drug testing requirements have changed in those states.
Iowa CDL Holders Have Online Resource
The Iowa Department of Transportation (IDOT) recently announced a new online service to help CDL holders comply with new regulations. "MyMVD Self-Certification and Medical Examiner's Certificate" service is available online 24/7 for use by busy drivers. By no later than January 30, 2014, all CDL holders must provide information to IDOT about the type of commercial motor vehicle operation they drive or expect to drive with their CDL. Drivers operating in certain types of commerce are also required to submit a current Medical Examiner's Certificate (physical card) to IDOT to obtain a "certified" medical status as part of their driving record. Failure by a person to provide and keep up-to-date their Medical Examiner's Certificate with IDOT will result in the loss of the CDL, downgrading it to a noncommercial license. IDOT wants to help CDL holders meet the federal deadline and encourages them to use the online service:
  1. Go to: mymvd.iowadot.gov
  2. Enter your name, date of birth, last five digits of your social security number and Iowa driver's license number.
  3. Select the "Self-Certification and Medical Examiner's Certificate" application.
  4. Select the type of commercial motor vehicle operation you drive in or expect to drive in with your CDL. Based on your selection, you will or will not be required to provide a copy of a valid Medical Examiner's Certificate. If a certificate is required, instructions will be provided for emailing, faxing or mailing the form to IDOT.
For drivers that don't have online access:
For drivers whose license expires between now and January 30, 2014, go to the driver's license station when it is time for your CDL to be renewed. The clerk will ask you to declare the type of commercial motor vehicle operation you intend to perform. If it falls into a certain category, you will be asked to provide your Medical Examiner's Certificate so that it can be scanned and saved with your driver record.
For drivers whose license does not expire until after January 30, 2014, you must go to an Iowa driver's license issuance location before January 30, 2014. The clerk will ask you to declare the type of commercial motor vehicle operation you intend to perform. If it falls into a certain category, you will be asked to provide your Medical Examiner's Certificate so that it can be scanned and saved with your driver record.
Until the federal program is fully implemented on January 30, 2014, a driver must still carry an original or copy of his or her Medical Examiner's Certificate and provide a copy to his or her employer for individual's driver qualification file. After January 30, 2014, a driver's Medical Examiner's Certificate will be recorded on the individual's driving record and it becomes the valid version of the certificate. An unexpired certificate must always be part of a CDL holder's driving record after this date. If a driver's certificate is about to expire, he or she must have a new medical examination and obtain a new medical certificate. The driver must then provide the new certificate to IDOT.
ATA Touts Using Hair Samples for Drug Testing
American Trucking Associations (ATA) is in favor of a recent bill requiring DOT to conduct a pilot program to evaluate the use of hair samples to test commercial drivers for illicit drug use. "For many years, ATA has supported improving drug and alcohol testing procedures for commercial drivers," ATA President and CEO Bill Graves said. "From advocating for the first drug and alcohol test standards, to pushing for the creation of a clearinghouse of drug and alcohol test results, to ensure fleets are hiring only safe, clean drivers, ATA has been at the front of the process improvement line." Graves says "research and experience shows that sampling hair can be much more effective than current, conventional sampling and testing methods."
EPA Finalizes Industrial Large Boiler Air Emissions Rule
After nearly a decade of wrangling and court actions, EPA recently published its final rule controlling air emissions from large industrial boilers at oil refineries, manufacturing plants and chemical production facilities. The rules, with an effective date of 2016, are designed to limit the emissions of mercury, acid gases and fine particulate matter, with total mercury emissions expected to drop 3% initially, EPA said. With three years to come up to the new standards - and the option of an additional year if requested - EPA said compliance should be relatively easy for most of the 2,300 regulated facilities affected by the rule, based on size and operations. It's still estimated, however, industry will spend $1.3-1.5 billion annually to comply with the new rules. The agency first tried to set boiler emission standards in 2004, but that set of rules was killed by a federal court in 2007, which said it violated the Clean Air Act (CAA). The proposed rule was reissued in 2011, but industry opposition and congressional pressure forced the agency to reconsider and rewrite the rule after gathering more industry data.
New Year Requires Revisions to FCRA
Employers must update the Fair Credit Reporting Act Notices used in their background check programs. Effective January 1, 2013, employers must use a new Fair Credit Reporting Act (FCRA) Summary of Rights form as part of their background check programs. The FCRA requires the Summary of Rights to be included: (1) as an enclosure with the pre-adverse action notice, which is sent when an employer decides to take an adverse action, based in whole or in part, on a consumer report; and (2) with the disclosure necessary to obtain "investigative consumer reports," which are consumer reports based on personal interviews conducted by a consumer reporting agency.
J. J. Keller Celebrates 60 Years of Helping Companies with Compliance
Our congratulations go out to J. J. Keller & Associates, Inc. as 2013 marks their 60th Anniversary of being the nation's most-trusted source for DOT compliance solutions. J.J. Keller & Associates has been a valued partner of the Asmark Institute for over 23 years. John "Jack" Keller established the company in downtown Neenah, Wisconsin in 1953, as a one-man regulatory consulting, warehousing and insurance underwriting operation. As government regulations evolved and new compliance challenges materialized, the company kept pace with new product and service offerings, building a solid reputation for providing companies in a variety of industries with solutions that help them manage safety and regulatory compliance.
"Over the years, we have seen markets develop and grow, and we've adapted accordingly," said Robert Keller, Chairman of J. J. Keller. "We believe we have contributed positively to that growth and development by helping companies meet their safety and compliance goals and by supplying the industries we serve with cutting edge products and services that, as a whole, are unsurpassed by any other provider." "Throughout the years, we've promoted a number of core values among our associates," said James Keller, President/CEO. "Today J. J. Keller associates continue to deliver these important values through quality products, dedicated customer service and innovative thinking."
Along with growing the company, Jack and Ethel Keller made it their personal mission to give back to the community. In 1990, Jack established the J. J. Keller Foundation in honor of Ethel's 70th birthday. This private, independent family foundation provides charitable funding to many worthwhile organizations, especially those addressing the causes and consequences of poverty in the neighboring communities. To date, gifts and commitments from the Foundation and funding programs have totaled more than $35 million. J. J. Keller and its associates also support numerous charitable endeavors, such as Habitat for Humanity, United Way, Boy Scouts, Catalpa Health and other benevolent work in the community.
Most Quotable: "The problem with socialism is that eventually you run out of other people's money to spend." -- Margaret Thatcher, the longest-serving Prime Minister of the United Kingdom of the 20th century, and the only woman ever to have held the post.
2013 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.