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Newsletter
Volume 114
May 1, 2013
Texas-Sized Call to Action!
A tragedy like the fire and explosion that occurred at the West Fertilizer facility serves as a call to action for each and every retail farm center to review their environmental, health, safety and security programs. An honest, diligent audit of the programsCall to Action! and procedures is in order to help prevent a catastrophe like this from ever occurring again. Hopefully, investigators from the Chemical Safety Board (CSB) and Alcohol Tobacco and Firearms (ATF) will be able to determine the sequence of events that led to the fire and explosion. Answers are most likely months away and in the meantime speculation is purely unproductive.
We should be proud of our national organizations for pulling together and helping to support the industry as the West Fertilizer story unfolded. I received my first communication from Kathy Mathers at The Fertilizer Institute at 2:56 a.m. the morning of the 18th. Their offer to have media inquiries directed to them came as a welcome sight for many in our industry. I learned later the TFI staff's day actually began around 1:00 a.m. and together these organizations handled literally hundreds of sensitive phone calls on behalf of the industry over the next few days. This was in addition to all the updates and other materials that were prepared to help facilitate the communication process. Ford West, President of The Fertilizer Institute, provided a heartfelt editorial published in USA Today and Daren Coppock, CEO of the Agricultural Retailers Association, helped set the record straight on NPR's The Diane Rehm Show.
Could this happen to me? By now this thought should have occurred to each and every person that works at a retail farm center. How would it affect you and your community? As these questions dawn on the people in our industry, the best way I know is to direct your attention to the man that owned West Fertilizer. Donald Adair, a farmer, bought the floundering West Fertilizer Company in 2004. His neighbors were grateful he had saved them from driving extra miles to Waco or Hillsboro to buy fertilizer and other supplies. After the explosion, neighbors still described the 83-year-old owner as honest and good, a quiet man that was always joking about something. "It's a typical farming community and everybody knows him," said one lifelong resident. Like many retailers, Mr. Adair is an elder in his church and was attending service on Wednesday night when he learned of the fire and drove to the scene to urge people to move to safety. Mr. and Mrs. Adair live about five miles from West, TX in a neat, white two-story house, set back from the road down a gravel driveway marked by a green John Deere mailbox. Six of the Adair's seven children also live in the West, TX area. Most of the dozen residents interviewed by Reuters News Service, including farmers, church members and local business owners who know Donald Adair, do not fault him for operating the plant so close to a residential area or for storing large quantities of ammonium nitrate and anhydrous ammonia. The privately held fertilizer plant has been in operation since 1962, long before the homes and nearby schools were built. Neighbors report the Adair family as one of the names in the newspaper generously donating to community events and being "one of the givers." "They've been good citizens of the community," according to neighbors.
Spotlight: Local Fertilizer Plant Reviews Safety Plan
The manager of Crop Production Services in Summerdale, AL invited local leaders and first responders for a tour of the plant in light of the tragedy in West, Texas. Branch Manager Abby Taylor led a tour of his facility and described the operations that occur there. Taylor told the participants of the tour that CPS doesn't produce fertilizer - they blend it and explained the difference. Taylor talked about the products stored and handled at the facility and detailed the environmental, health, safety and security measures in place to ensure they operate safely. Taylor told the participants they don't use ammonium nitrate - but rather use a straight nitrogen fertilizer, potash, lime and other common blends. First responders were impressed with the company's emergency action plan. Click here to review the footage. Abby and the crew at CPS-Summerdale should be commended for taking the initiative to reach out to their local responders and community. This serves as an example for other farm centers.
New and Improved...Respirator Express™
Respirator Express™ is designed to organize and streamline the qualification process for employees required to wear a respirator. The process starts with the completion of an online medical questionnaire and results in the employee receiving the proper paperwork. Recent changes now allow you to select from a list of current employees, eliminating the risk for misentered data, such as name, social security number, etc. Upon submitting the questionnaire, the results are reviewed immediately utilizing an algorithm. This new process makes it possible to automatically provide the user with either a Fit Test Certificate or Physician's Report instantly. To date, there have been more than 20,000 evaluations performed successfully, which has allowed us to create the algorithm based on historical averages and the appropriate medical standards. The online medical questionnaire must be completed every two years, while the Fit Test must be completed annually. During the interim years when the medical evaluation is not needed, but the Fit Test is up for renewal, go to the Personalized Forms section of our website and select from your list of current employees to instantly generate a personalized form. ¿Habla usted español? ... Coming soon to the website is the online respirator questionnaire in Spanish.
Registration Begins for the 2013 Emergency Response Refresher Course
Invitations to the 2013 refresher courses were mailed on April 25th and classes are already beginning to fill up. Training will be provided at 53 remote locations around the country this year (up from 48 last year) for the one-day refresher course. Register today to ensure space is available for the class of your choice. Register online by clicking here.
DOT Audits Looking for Nurse Tanks with Illegible or Missing ASME Data Plates
In July of 2012, the Nurse Tank Inspection Program (NTIP) was reinvented with the goal of creating a system which promoted data integrity and better record keeping as a whole. In the time since its initial launch, Nick Lawrence has been diligently working to achieve these goals by reconciling tanks within the new system for clients that have indicated they wanted to continue to utilize NTIP to track their tanks. The NTIP system is being offered in conjunction with our Vehicle Maintenance Central (VMC) program. VMC is a web-based tool that makes it simple and easy to track and document vehicle maintenance files and nurse tanks as well. Utilizing both NTIP and VMC allows for tracking of ammonia nurse wagons, tanks and tank inspections all in one convenient location. By way of the new electronic NTIP entry form, all NTIP inspections entered by Cargo Tank Inspectors are stored electronically for the facilities that use VMC to track their nurse tanks. The NTIP system has been re-tooled to better meet the needs of our clients.
Interested CT Inspectors, who are not already registered to use NTIP but would like to learn more, should contact Nick Clements at 270-926-4600 Ext 212 or nick.clements@asmark.org. You can also visit the website at nursetank.org for more information or to register.
Proposed Mandatory Use of E-Verify Raises Concerns
A bill that would require businesses to screen potential hires through E-Verify has raised concerns because the program can take a long time to identify legitimate workers and has trouble detecting identity theft. The requirement could come under a comprehensive bill to reform the country's immigration laws, and would give businesses five years to become familiar with the program. Some large companies are already using E-Verify, but its errors could hurt operations of small businesses. This is one to watch.
Environmental Respect Award State & Regional Winners
The Environmental Respect Award (ERA) is the agricultural industry's highest recognition for environmental stewardship among U.S. retailers, those serving growers with agronomic information critical to effective crop production. A panel of industry experts gathers each year to recognize achievement in environmental stewardship, professional excellence and community involvement. Winners have been chosen based on evidence of excellence in site design, in-plant storage and handling procedures, emergency preparedness and response, proper application and leadership in safety and stewardship among customers and employees. We congratulate the following State winners for stepping up and showing their environmental respect. Members of the Asmark Institute are denoted in red. (Alphabetical by state.)
Crop Production Services
Selma, Alabama
Crop Production Services
Yuma, Arizona
Crop Production Services
Pocahontas, Arkansas
Crop Production Services
Santa Maria, California
Simplot Grower Solutions
Fort Collins, Colorado
Crop Production Services
Hastings, Florida
Crop Production Services
Colquitt, Georgia
JR Simplot Company
St. Anthony, Idaho
Wabash Valley Service Company
Allendale, Illinois
Ceres Solutions, LLP
Templeton, Indiana
West Central Cooperative
Ralston, Iowa
United Plains Ag/CHS
Quinter, Kansas
Crop Production Services
Clarkson, Kentucky
Crop Production Services
New Roads, Louisiana
Crop Production Services
Henderson, Michigan
JR Simplot Company
Hatfield, Minnesota
Crop Production Services
Boyle, Mississippi
Crop Production Services
Bernie, Missouri
Central Montana Coop
Lewistown, Montana
CHS Agri Service Center
Loomis, Nebraska
Crop Production Services
Bridgeton, New Jersey
Calypso Farm Supply
Calypso, North Carolina
Crop Production Services
Edison, Ohio
Crop Production Services
Webbers Falls, Oklahoma
Crop Production Services
Keizer, Oregon
Crop Production Services
Darlington, South Carolina
Crop Production Services
Covington, Tennessee
Crop Production Services
Caldwell, Texas
The McGregor Company
LaCrosse, Washington
Each state winner will receive the distinctive ERA personalized crystal sculpture, a statewide press campaign geared toward select print and broadcast media and a public relations kit. The winning agribusinesses also competed for regional Environmental Respect Awards. Regional winners will receive a trophy during a special ceremony in Washington, D.C. The national award winner will also be announced at this time.
KENTUCKY: Annual Safety Training Required for Certain Truck Drivers
SB 96, signed by Governor Beshear, will require annual motor carrier operation and safety training for drivers of interstate commercial motor vehicles (over 10,000 pounds GVWR), and intrastate commercial motor vehicles of over 26,000 pounds GVWR. The Motor Carrier Advisory Committee (MCAC) will provide standards for the education training courses and require approval of providers for the training courses.
Header Carts Tax Exempt (by law now)
There should no longer be any question in Kentucky about whether or not equipment used to move a combine head qualifies for the sales tax exemption for farm equipment as a result of legislative action this session. As part of the pension funding legislation (HB 440), language was added to KRS 139.480 to clarify that combine header trailers are exempt from the state sales tax. This provision is consistent with a revised interpretation made by the Revenue Department after the end of the 2012 Session.
New Legislation Calls for More Regulations on Chemical Plants
After the incident at the fertilizer facility in West, Texas, U.S. Senator Frank R. Lautenberg (D-NJ), a long-time environmental advocate, introduced legislation to allegedly strengthen a federal law that requires chemical plants and other facilities in possession of dangerous chemicals to register with the Department of Homeland Security (DHS). It is unlikely that Senator Lautenberg is aware that agricultural retail use of products like anhydrous ammonia and ammonium nitrate are currently regulated by more than six agencies. This new legislation, if enacted into law, would make it a crime for facilities to fail to register the chemicals stored on-site.
SPCC Plan Compliance Deadline for Farms: May 10, 2013
On October 18, 2011, the U.S. EPA issued a rule to extend the compliance date by which farms must prepare or amend and implement their Spill Prevention Control & Countermeasures Plan (SPCC) to May 10, 2013. Farm operations now have less than two weeks to comply with the SPCC requirements. Farms need an SPCC plan if an oil spill could reach water and oil products (diesel, gasoline, hydraulic oil, lube oil, crop oil or vegetable oil) are stored in above ground quantities of more than 1,320 gallons or completely buried tanks with more than 42,000 gallons of oil.
If your farm has 10,000 gallons or less of above ground oil storage capacity, and in three years before developing and certifying your plan you had no oil spill to water larger than 1,000 gallons in a single spill or 42 gallons each from two spills within any 12 month period, then your farm is classified as a Tier II farm. If your farm meets the above criteria and has no above ground storage containers with a capacity greater than 5,000 gallons, then your farm will be classified as a Tier I farm. If you meet criteria for Tier I and Tier II farm operations, you can develop and self-certify your own SPPC plan. NOTE: If you have more than 10,000 gallons of above ground storage capacity, you will need a Professional Engineer to review and certify your SPCC Plan.
The Asmark Institute has developed a web-based suite of tools and guidance material specifically to help retail farm centers and farmers comply with the U.S. EPA SPCC plan requirements. MySPCC was named for its unique ability to personalize the SPCC plan to a specific facility or farm.
Pesticide Suit Tossed
U.S. District Judge Joseph C. Spero dismissed a suit by the Center for Biological Diversity and Pesticide Action Network North America asking EPA to revoke long-standing registration of more than 380 crop protection chemicals on the grounds they threaten endangered wildlife. Ruling on motions by EPA and CropLife America, the chemical industry trade group, Spero held that the challengers had not alleged specific government actions sufficient for the suit to proceed. He gave them 30 days to file an amended complaint with specific allegations or 60 days to appeal to the 9th Circuit Court. "The complaint was certainly too vague and missed the mark on a host of legal factors," said CLA President Jay Vroom.
DOT: Revision of Maximum and Minimum Civil Penalties
DOT is revising the references in its regulations to the maximum and minimum civil penalties for a knowing violation of the Federal hazardous material transportation law or a regulation, order, special permit, or approval issued under that law. As amended in the "Moving Ahead for Progress in the 21st Century Act" (MAP-21), effective October 1, 2012, the maximum civil penalty is $175,000 for a violation that results in death, serious illness or severe injury to any person or substantial destruction of property. In addition, there is no longer a minimum civil penalty amount, except that the minimum civil penalty amount of $450 applies to a violation relating to training.
Iowa Supreme Court Upholds NGFA Arbitration Decision, Grain Contracting Practices
In a significant recent court decision, the Iowa Supreme Court upheld a National Grain and Feed Association arbitration decision and validated the common trade practice of confirming oral agreements with signed written contracts. The case, Bartlett Grain Company vs. Steven Sheeder, focused on whether there was an enforceable agreement to arbitrate if two parties agreed over the phone to a sale of grain, and later confirmed that agreement with a signed, written document containing an arbitration clause that was not part of the phone conversation.
The Iowa Supreme Court ruled that because the parties signed final, written confirmations - which contained the arbitration clauses - those documents constituted valid agreements to arbitrate. That ruling reversed an Iowa district court's decision with directions to confirm the arbitration award in favor of the grain seller.
In 2010, Sheeder entered into eight oral agreements with Bartlett for the sale of 155,000 bushels of corn to be delivered at various future dates. Following each of the oral agreements, Bartlett sent Sheeder a "Purchase Confirmation" for both parties to sign; which they did. The purchase confirmations referred to the "legally binding" nature of these agreements and Sheeder's right to object to or disagree with any of the terms provided. The purchase confirmations further provided that they were subject to the NGFA Trade Rules and that any disputes arising out of the agreements were to be resolved through NGFA arbitration.
In April 2011, based upon "reasonable grounds for insecurity" on whether Sheeder was likely to fulfill the contracts, Bartlett requested "adequate assurances of performance" from Sheeder, which Sheeder failed to provide. Bartlett then filed an arbitration complaint with NGFA against Sheeder. In October 2011, after Sheeder failed to reply to various notifications from NGFA to initiate the arbitration process, NGFA entered a default judgment for Bartlett.
In November, Bartlett filed an application with the Montgomery County (Iowa) District Court for confirmation of the arbitration. Sheeder argued that the arbitration provisions in the written confirmations were not enforceable because they were not included in the initial oral agreements. The district court denied Bartlett's application and concluded there was "no enforceable agreement between the parties to arbitrate" even though the parties had signed the agreements containing those arbitration provisions. Bartlett filed an appeal, and both the NGFA and the Agribusiness Association of Iowa were permitted to join in the appeal as amicus curiae. At stake was not only enforcement of the arbitration provision, but also the district court's decision to discount how oral agreements for the purchase of grain are widely and commonly confirmed in writing, which had significant potential implications for the trade.
The Iowa Supreme Court reversed the district court and ordered confirmation of the arbitration award stating, "because the parties signed final, written documents that included arbitration clauses, we conclude valid agreements to arbitrate existed."
Surviving the Transition to a New Form I-9
In March 2012, the United States Citizenship and Immigration Services (USCIS) published a 60-day information collection notice in the Federal Register inviting the public to comment on a proposed version of the Form I-9. This was necessary since the USCIS is required to renew the Form I-9 every three years, and the form that employers were using was set to expire in August 2012. The USCIS received over 6,300 comments in response to its request, and the public didn't hear from them again until August 2012, when the agency published another notice soliciting comments, this time for 30 days. With all the data collected, it didn't come as a big surprise that a revised Form I-9 wasn't ready for release by the previous form's August 31, 2012 expiration date.
For several months, the USCIS instructed employers to continue using the expired Form I-9 until further notice. That notice didn't come until almost six months later on March 8, 2013 when a new Form I-9 was released and simultaneously became available for use. The most current version of the Form I-9 has a revised date of March 8, 2013, and an expiration date of March 31, 2016. Locating the expiration date in the top right-hand corner of the form is an easy way for employers to identify that they're using the most current form.
Employers were allowed to begin using the new form immediately on March 8, 2013, and the USCIS encouraged immediate use of the form. As a result, the USCIS granted employers 60 days from the form's effective date - or May 7, 2013 - to begin using the new form. In the interim, employers may continue to use either of the previous versions of the form (Rev. 08/07/09 or Rev. 02/02/09).
A noticeably longer form - One of the first things that employers will likely notice about the new Form I-9 are the changes to both overall length and layout, which go hand in hand. The previous version was five pages, including the instructions (which were three pages), the Lists of Acceptable Documents (one page), and the form itself (one page). The revised Form I-9 is a total of nine pages. Of that, the instructions have been expanded to six pages.
The additional length to the Form I-9 also affects retention of the forms. Employers are required to retain only the portion of the form on which the employer and the employee enter information, but some employers also choose to keep the Lists of Acceptable Documents with the form.
Bipartisan Bill Introduced to Eliminate Unnecessary EPA Regulation on Farmers
"This bill is not about whether pesticides should be regulated, but rather about eliminating a redundant regulation that provides little or no environmental or public health benefits, and imposes unnecessary burdens on our farmers, states and municipalities and other entities that use pesticides responsibly. I will continue working with my colleagues to eliminate redundant regulations that add unnecessary costs and create legal uncertainty during these difficult economic times." "Farmers and ranchers throughout Idaho's rural communities are being buried by costly regulations that provide little benefit to their intended purposes," U.S. Senator Mike Crapo (R-ID) said in a release announcing a new bipartisan bill to eliminate an unnecessary and costly Environmental Protection Agency (EPA) regulation on pesticides. The Sensible Environmental Protection Act (SEPA) of 2013 is co-sponsored by a bipartisan group of Senators, including: Carper (D-DE), Coons (D-DE), Risch (R-ID), Heitkamp (D-ND), Vitter (R-LA), McCaskill (D-MO), Inhofe (R-OK) and Donnelly (D-IN). U.S. Senators Kay Hagan (D-NC) and Mike Crapo (R-ID) introduced the bill. "This bill will help ease the burden of duplicative regulations on our farmers by reforming the pesticide permitting process in a responsible way that protects our health without wasting taxpayer dollars or straining our agricultural producers." For nearly 40 years, the EPA has implemented a comprehensive regulatory scheme for pesticide applications under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). According to the EPA, a new pesticide must undergo over 100 different tests to characterize its potential risks to the environment and human and wildlife health. SEPA is supported by 150 farming and forestry groups and state regulators from across the country.
New Ladder Safety Resources Available
OSHA has published a new bilingual English-Spanish booklet on safe ladder use, "Falling Off Ladders Can Kill: Use Them Safely". Developed in partnership with the Singapore Workplace Safety and Health Council and Ministry of Manpower, the booklet provides clear, easy-to-follow information about ladder hazards and using ladders safely, featuring simple illustrations and plain language writing.
Falls are the leading cause of death in construction, and OSHA is working with the National Institute for Occupational Safety and Health and the National Occupational Research Agenda to get the word out about how to "Plan, Provide, Train" to prevent fatal falls. To learn more, visit www.osha.gov/stopfalls.
OSHA Re-establishes the Maritime Advisory Committee for Occupational Safety and Health
Acting Secretary of Labor Seth D. Harris announced that he will re-establish the charter of the Maritime Advisory Committee for Occupational Safety and Health. Re-establishing MACOSH will allow the committee to continue its work protecting the safety and health of workers in the maritime industry. Since receiving its first charter in 1995, MACOSH has made more than 100 recommendations to OSHA. The agency used these recommendations to develop guidance products and standards. MACOSH meetings are open to the public.
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.
Texas-Sized Call to Action!
A tragedy like the fire and explosion that occurred at the West Fertilizer facility serves as a call to action for each and every retail farm center to review their environmental, health, safety and security programs. An honest, diligent audit of the programsCall to Action! and procedures is in order to help prevent a catastrophe like this from ever occurring again. Hopefully, investigators from the Chemical Safety Board (CSB) and Alcohol Tobacco and Firearms (ATF) will be able to determine the sequence of events that led to the fire and explosion. Answers are most likely months away and in the meantime speculation is purely unproductive.
We should be proud of our national organizations for pulling together and helping to support the industry as the West Fertilizer story unfolded. I received my first communication from Kathy Mathers at The Fertilizer Institute at 2:56 a.m. the morning of the 18th. Their offer to have media inquiries directed to them came as a welcome sight for many in our industry. I learned later the TFI staff's day actually began around 1:00 a.m. and together these organizations handled literally hundreds of sensitive phone calls on behalf of the industry over the next few days. This was in addition to all the updates and other materials that were prepared to help facilitate the communication process. Ford West, President of The Fertilizer Institute, provided a heartfelt editorial published in USA Today and Daren Coppock, CEO of the Agricultural Retailers Association, helped set the record straight on NPR's The Diane Rehm Show.
Could this happen to me? By now this thought should have occurred to each and every person that works at a retail farm center. How would it affect you and your community? As these questions dawn on the people in our industry, the best way I know is to direct your attention to the man that owned West Fertilizer. Donald Adair, a farmer, bought the floundering West Fertilizer Company in 2004. His neighbors were grateful he had saved them from driving extra miles to Waco or Hillsboro to buy fertilizer and other supplies. After the explosion, neighbors still described the 83-year-old owner as honest and good, a quiet man that was always joking about something. "It's a typical farming community and everybody knows him," said one lifelong resident. Like many retailers, Mr. Adair is an elder in his church and was attending service on Wednesday night when he learned of the fire and drove to the scene to urge people to move to safety. Mr. and Mrs. Adair live about five miles from West, TX in a neat, white two-story house, set back from the road down a gravel driveway marked by a green John Deere mailbox. Six of the Adair's seven children also live in the West, TX area. Most of the dozen residents interviewed by Reuters News Service, including farmers, church members and local business owners who know Donald Adair, do not fault him for operating the plant so close to a residential area or for storing large quantities of ammonium nitrate and anhydrous ammonia. The privately held fertilizer plant has been in operation since 1962, long before the homes and nearby schools were built. Neighbors report the Adair family as one of the names in the newspaper generously donating to community events and being "one of the givers." "They've been good citizens of the community," according to neighbors.
Spotlight: Local Fertilizer Plant Reviews Safety Plan
The manager of Crop Production Services in Summerdale, AL invited local leaders and first responders for a tour of the plant in light of the tragedy in West, Texas. Branch Manager Abby Taylor led a tour of his facility and described the operations that occur there. Taylor told the participants of the tour that CPS doesn't produce fertilizer - they blend it and explained the difference. Taylor talked about the products stored and handled at the facility and detailed the environmental, health, safety and security measures in place to ensure they operate safely. Taylor told the participants they don't use ammonium nitrate - but rather use a straight nitrogen fertilizer, potash, lime and other common blends. First responders were impressed with the company's emergency action plan. Click here to review the footage. Abby and the crew at CPS-Summerdale should be commended for taking the initiative to reach out to their local responders and community. This serves as an example for other farm centers.
New and Improved...Respirator Express™
Respirator Express™ is designed to organize and streamline the qualification process for employees required to wear a respirator. The process starts with the completion of an online medical questionnaire and results in the employee receiving the proper paperwork. Recent changes now allow you to select from a list of current employees, eliminating the risk for misentered data, such as name, social security number, etc. Upon submitting the questionnaire, the results are reviewed immediately utilizing an algorithm. This new process makes it possible to automatically provide the user with either a Fit Test Certificate or Physician's Report instantly. To date, there have been more than 20,000 evaluations performed successfully, which has allowed us to create the algorithm based on historical averages and the appropriate medical standards. The online medical questionnaire must be completed every two years, while the Fit Test must be completed annually. During the interim years when the medical evaluation is not needed, but the Fit Test is up for renewal, go to the Personalized Forms section of our website and select from your list of current employees to instantly generate a personalized form. ¿Habla usted español? ... Coming soon to the website is the online respirator questionnaire in Spanish.
Registration Begins for the 2013 Emergency Response Refresher Course
Invitations to the 2013 refresher courses were mailed on April 25th and classes are already beginning to fill up. Training will be provided at 53 remote locations around the country this year (up from 48 last year) for the one-day refresher course. Register today to ensure space is available for the class of your choice. Register online by clicking here.
DOT Audits Looking for Nurse Tanks with Illegible or Missing ASME Data Plates
In July of 2012, the Nurse Tank Inspection Program (NTIP) was reinvented with the goal of creating a system which promoted data integrity and better record keeping as a whole. In the time since its initial launch, Nick Lawrence has been diligently working to achieve these goals by reconciling tanks within the new system for clients that have indicated they wanted to continue to utilize NTIP to track their tanks. The NTIP system is being offered in conjunction with our Vehicle Maintenance Central (VMC) program. VMC is a web-based tool that makes it simple and easy to track and document vehicle maintenance files and nurse tanks as well. Utilizing both NTIP and VMC allows for tracking of ammonia nurse wagons, tanks and tank inspections all in one convenient location. By way of the new electronic NTIP entry form, all NTIP inspections entered by Cargo Tank Inspectors are stored electronically for the facilities that use VMC to track their nurse tanks. The NTIP system has been re-tooled to better meet the needs of our clients.
Interested CT Inspectors, who are not already registered to use NTIP but would like to learn more, should contact Nick Clements at 270-926-4600 Ext 212 or nick.clements@asmark.org. You can also visit the website at nursetank.org for more information or to register.
Proposed Mandatory Use of E-Verify Raises Concerns
A bill that would require businesses to screen potential hires through E-Verify has raised concerns because the program can take a long time to identify legitimate workers and has trouble detecting identity theft. The requirement could come under a comprehensive bill to reform the country's immigration laws, and would give businesses five years to become familiar with the program. Some large companies are already using E-Verify, but its errors could hurt operations of small businesses. This is one to watch.
Environmental Respect Award State & Regional Winners
The Environmental Respect Award (ERA) is the agricultural industry's highest recognition for environmental stewardship among U.S. retailers, those serving growers with agronomic information critical to effective crop production. A panel of industry experts gathers each year to recognize achievement in environmental stewardship, professional excellence and community involvement. Winners have been chosen based on evidence of excellence in site design, in-plant storage and handling procedures, emergency preparedness and response, proper application and leadership in safety and stewardship among customers and employees. We congratulate the following State winners for stepping up and showing their environmental respect. Members of the Asmark Institute are denoted in red. (Alphabetical by state.)
Crop Production Services
Selma, Alabama
Crop Production Services
Yuma, Arizona
Crop Production Services
Pocahontas, Arkansas
Crop Production Services
Santa Maria, California
Simplot Grower Solutions
Fort Collins, Colorado
Crop Production Services
Hastings, Florida
Crop Production Services
Colquitt, Georgia
JR Simplot Company
St. Anthony, Idaho
Wabash Valley Service Company
Allendale, Illinois
Ceres Solutions, LLP
Templeton, Indiana
West Central Cooperative
Ralston, Iowa
United Plains Ag/CHS
Quinter, Kansas
Crop Production Services
Clarkson, Kentucky
Crop Production Services
New Roads, Louisiana
Crop Production Services
Henderson, Michigan
JR Simplot Company
Hatfield, Minnesota
Crop Production Services
Boyle, Mississippi
Crop Production Services
Bernie, Missouri
Central Montana Coop
Lewistown, Montana
CHS Agri Service Center
Loomis, Nebraska
Crop Production Services
Bridgeton, New Jersey
Calypso Farm Supply
Calypso, North Carolina
Crop Production Services
Edison, Ohio
Crop Production Services
Webbers Falls, Oklahoma
Crop Production Services
Keizer, Oregon
Crop Production Services
Darlington, South Carolina
Crop Production Services
Covington, Tennessee
Crop Production Services
Caldwell, Texas
The McGregor Company
LaCrosse, Washington
Each state winner will receive the distinctive ERA personalized crystal sculpture, a statewide press campaign geared toward select print and broadcast media and a public relations kit. The winning agribusinesses also competed for regional Environmental Respect Awards. Regional winners will receive a trophy during a special ceremony in Washington, D.C. The national award winner will also be announced at this time.
KENTUCKY: Annual Safety Training Required for Certain Truck Drivers
SB 96, signed by Governor Beshear, will require annual motor carrier operation and safety training for drivers of interstate commercial motor vehicles (over 10,000 pounds GVWR), and intrastate commercial motor vehicles of over 26,000 pounds GVWR. The Motor Carrier Advisory Committee (MCAC) will provide standards for the education training courses and require approval of providers for the training courses.
Header Carts Tax Exempt (by law now)
There should no longer be any question in Kentucky about whether or not equipment used to move a combine head qualifies for the sales tax exemption for farm equipment as a result of legislative action this session. As part of the pension funding legislation (HB 440), language was added to KRS 139.480 to clarify that combine header trailers are exempt from the state sales tax. This provision is consistent with a revised interpretation made by the Revenue Department after the end of the 2012 Session.
New Legislation Calls for More Regulations on Chemical Plants
After the incident at the fertilizer facility in West, Texas, U.S. Senator Frank R. Lautenberg (D-NJ), a long-time environmental advocate, introduced legislation to allegedly strengthen a federal law that requires chemical plants and other facilities in possession of dangerous chemicals to register with the Department of Homeland Security (DHS). It is unlikely that Senator Lautenberg is aware that agricultural retail use of products like anhydrous ammonia and ammonium nitrate are currently regulated by more than six agencies. This new legislation, if enacted into law, would make it a crime for facilities to fail to register the chemicals stored on-site.
SPCC Plan Compliance Deadline for Farms: May 10, 2013
On October 18, 2011, the U.S. EPA issued a rule to extend the compliance date by which farms must prepare or amend and implement their Spill Prevention Control & Countermeasures Plan (SPCC) to May 10, 2013. Farm operations now have less than two weeks to comply with the SPCC requirements. Farms need an SPCC plan if an oil spill could reach water and oil products (diesel, gasoline, hydraulic oil, lube oil, crop oil or vegetable oil) are stored in above ground quantities of more than 1,320 gallons or completely buried tanks with more than 42,000 gallons of oil.
If your farm has 10,000 gallons or less of above ground oil storage capacity, and in three years before developing and certifying your plan you had no oil spill to water larger than 1,000 gallons in a single spill or 42 gallons each from two spills within any 12 month period, then your farm is classified as a Tier II farm. If your farm meets the above criteria and has no above ground storage containers with a capacity greater than 5,000 gallons, then your farm will be classified as a Tier I farm. If you meet criteria for Tier I and Tier II farm operations, you can develop and self-certify your own SPPC plan. NOTE: If you have more than 10,000 gallons of above ground storage capacity, you will need a Professional Engineer to review and certify your SPCC Plan.
The Asmark Institute has developed a web-based suite of tools and guidance material specifically to help retail farm centers and farmers comply with the U.S. EPA SPCC plan requirements. MySPCC was named for its unique ability to personalize the SPCC plan to a specific facility or farm.
Pesticide Suit Tossed
U.S. District Judge Joseph C. Spero dismissed a suit by the Center for Biological Diversity and Pesticide Action Network North America asking EPA to revoke long-standing registration of more than 380 crop protection chemicals on the grounds they threaten endangered wildlife. Ruling on motions by EPA and CropLife America, the chemical industry trade group, Spero held that the challengers had not alleged specific government actions sufficient for the suit to proceed. He gave them 30 days to file an amended complaint with specific allegations or 60 days to appeal to the 9th Circuit Court. "The complaint was certainly too vague and missed the mark on a host of legal factors," said CLA President Jay Vroom.
DOT: Revision of Maximum and Minimum Civil Penalties
DOT is revising the references in its regulations to the maximum and minimum civil penalties for a knowing violation of the Federal hazardous material transportation law or a regulation, order, special permit, or approval issued under that law. As amended in the "Moving Ahead for Progress in the 21st Century Act" (MAP-21), effective October 1, 2012, the maximum civil penalty is $175,000 for a violation that results in death, serious illness or severe injury to any person or substantial destruction of property. In addition, there is no longer a minimum civil penalty amount, except that the minimum civil penalty amount of $450 applies to a violation relating to training.
Iowa Supreme Court Upholds NGFA Arbitration Decision, Grain Contracting Practices
In a significant recent court decision, the Iowa Supreme Court upheld a National Grain and Feed Association arbitration decision and validated the common trade practice of confirming oral agreements with signed written contracts. The case, Bartlett Grain Company vs. Steven Sheeder, focused on whether there was an enforceable agreement to arbitrate if two parties agreed over the phone to a sale of grain, and later confirmed that agreement with a signed, written document containing an arbitration clause that was not part of the phone conversation.
The Iowa Supreme Court ruled that because the parties signed final, written confirmations - which contained the arbitration clauses - those documents constituted valid agreements to arbitrate. That ruling reversed an Iowa district court's decision with directions to confirm the arbitration award in favor of the grain seller.
In 2010, Sheeder entered into eight oral agreements with Bartlett for the sale of 155,000 bushels of corn to be delivered at various future dates. Following each of the oral agreements, Bartlett sent Sheeder a "Purchase Confirmation" for both parties to sign; which they did. The purchase confirmations referred to the "legally binding" nature of these agreements and Sheeder's right to object to or disagree with any of the terms provided. The purchase confirmations further provided that they were subject to the NGFA Trade Rules and that any disputes arising out of the agreements were to be resolved through NGFA arbitration.
In April 2011, based upon "reasonable grounds for insecurity" on whether Sheeder was likely to fulfill the contracts, Bartlett requested "adequate assurances of performance" from Sheeder, which Sheeder failed to provide. Bartlett then filed an arbitration complaint with NGFA against Sheeder. In October 2011, after Sheeder failed to reply to various notifications from NGFA to initiate the arbitration process, NGFA entered a default judgment for Bartlett.
In November, Bartlett filed an application with the Montgomery County (Iowa) District Court for confirmation of the arbitration. Sheeder argued that the arbitration provisions in the written confirmations were not enforceable because they were not included in the initial oral agreements. The district court denied Bartlett's application and concluded there was "no enforceable agreement between the parties to arbitrate" even though the parties had signed the agreements containing those arbitration provisions. Bartlett filed an appeal, and both the NGFA and the Agribusiness Association of Iowa were permitted to join in the appeal as amicus curiae. At stake was not only enforcement of the arbitration provision, but also the district court's decision to discount how oral agreements for the purchase of grain are widely and commonly confirmed in writing, which had significant potential implications for the trade.
The Iowa Supreme Court reversed the district court and ordered confirmation of the arbitration award stating, "because the parties signed final, written documents that included arbitration clauses, we conclude valid agreements to arbitrate existed."
Surviving the Transition to a New Form I-9
In March 2012, the United States Citizenship and Immigration Services (USCIS) published a 60-day information collection notice in the Federal Register inviting the public to comment on a proposed version of the Form I-9. This was necessary since the USCIS is required to renew the Form I-9 every three years, and the form that employers were using was set to expire in August 2012. The USCIS received over 6,300 comments in response to its request, and the public didn't hear from them again until August 2012, when the agency published another notice soliciting comments, this time for 30 days. With all the data collected, it didn't come as a big surprise that a revised Form I-9 wasn't ready for release by the previous form's August 31, 2012 expiration date.
For several months, the USCIS instructed employers to continue using the expired Form I-9 until further notice. That notice didn't come until almost six months later on March 8, 2013 when a new Form I-9 was released and simultaneously became available for use. The most current version of the Form I-9 has a revised date of March 8, 2013, and an expiration date of March 31, 2016. Locating the expiration date in the top right-hand corner of the form is an easy way for employers to identify that they're using the most current form.
Employers were allowed to begin using the new form immediately on March 8, 2013, and the USCIS encouraged immediate use of the form. As a result, the USCIS granted employers 60 days from the form's effective date - or May 7, 2013 - to begin using the new form. In the interim, employers may continue to use either of the previous versions of the form (Rev. 08/07/09 or Rev. 02/02/09).
A noticeably longer form - One of the first things that employers will likely notice about the new Form I-9 are the changes to both overall length and layout, which go hand in hand. The previous version was five pages, including the instructions (which were three pages), the Lists of Acceptable Documents (one page), and the form itself (one page). The revised Form I-9 is a total of nine pages. Of that, the instructions have been expanded to six pages.
The additional length to the Form I-9 also affects retention of the forms. Employers are required to retain only the portion of the form on which the employer and the employee enter information, but some employers also choose to keep the Lists of Acceptable Documents with the form.
Bipartisan Bill Introduced to Eliminate Unnecessary EPA Regulation on Farmers
"This bill is not about whether pesticides should be regulated, but rather about eliminating a redundant regulation that provides little or no environmental or public health benefits, and imposes unnecessary burdens on our farmers, states and municipalities and other entities that use pesticides responsibly. I will continue working with my colleagues to eliminate redundant regulations that add unnecessary costs and create legal uncertainty during these difficult economic times." "Farmers and ranchers throughout Idaho's rural communities are being buried by costly regulations that provide little benefit to their intended purposes," U.S. Senator Mike Crapo (R-ID) said in a release announcing a new bipartisan bill to eliminate an unnecessary and costly Environmental Protection Agency (EPA) regulation on pesticides. The Sensible Environmental Protection Act (SEPA) of 2013 is co-sponsored by a bipartisan group of Senators, including: Carper (D-DE), Coons (D-DE), Risch (R-ID), Heitkamp (D-ND), Vitter (R-LA), McCaskill (D-MO), Inhofe (R-OK) and Donnelly (D-IN). U.S. Senators Kay Hagan (D-NC) and Mike Crapo (R-ID) introduced the bill. "This bill will help ease the burden of duplicative regulations on our farmers by reforming the pesticide permitting process in a responsible way that protects our health without wasting taxpayer dollars or straining our agricultural producers." For nearly 40 years, the EPA has implemented a comprehensive regulatory scheme for pesticide applications under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). According to the EPA, a new pesticide must undergo over 100 different tests to characterize its potential risks to the environment and human and wildlife health. SEPA is supported by 150 farming and forestry groups and state regulators from across the country.
New Ladder Safety Resources Available
OSHA has published a new bilingual English-Spanish booklet on safe ladder use, "Falling Off Ladders Can Kill: Use Them Safely". Developed in partnership with the Singapore Workplace Safety and Health Council and Ministry of Manpower, the booklet provides clear, easy-to-follow information about ladder hazards and using ladders safely, featuring simple illustrations and plain language writing.
Falls are the leading cause of death in construction, and OSHA is working with the National Institute for Occupational Safety and Health and the National Occupational Research Agenda to get the word out about how to "Plan, Provide, Train" to prevent fatal falls. To learn more, visit www.osha.gov/stopfalls.
OSHA Re-establishes the Maritime Advisory Committee for Occupational Safety and Health
Acting Secretary of Labor Seth D. Harris announced that he will re-establish the charter of the Maritime Advisory Committee for Occupational Safety and Health. Re-establishing MACOSH will allow the committee to continue its work protecting the safety and health of workers in the maritime industry. Since receiving its first charter in 1995, MACOSH has made more than 100 recommendations to OSHA. The agency used these recommendations to develop guidance products and standards. MACOSH meetings are open to the public.
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.