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Newsletter
Volume 119
October 1, 2013
Spotlight: ResponsibleAg
In the wake of the West Fertilizer tragedy, the regulatory agencies - both State and Federal - have come under fire for their actions and coordination, or lack thereof. Both regulators and legislators agree our industry is already heavily regulated and frankly they don't know how to fix the problem. Following the explosion in West, TX, the regulatory agencies readily admitted they don't understand our industry. This lack of understanding has been recognized as stifling any meaningful outreach to help facilities comply.
The circumstances that have developed since the explosion has presented an opportunity to "do something" proactive to help make sure all the locations know what the rules are and abide by them voluntarily.
With every day that passes comes a new Executive Order, commission report or regulatory panel that indicates the need for tighter regulation. It is essential that our industry check itself as soon as possible or the government agencies will come up with more new rules "they think" will help ensure another West Fertilizer doesn't ever happen again.
ResponsibleAg will help ensure our industry is aware of, and complies with, the regulations that are already in place. ResponsibleAg is already working to prevent additional unnecessary regulations. ResponsibleAg will need your support!
Asmark Institute Selected to Develop/Administer ResponsibleAg
The Asmark Institute has been selected to build the ResponsibleAg database and website and administer the program. The Asmark Institute Board of Directors approved a proposal that would allow the staff to build the infrastructure and administer the program free of charge for time or talent, asking only for out-of-pocket reimbursements like hardware, software, postage, UPS, etc. This is a significant contribution by an organization and backs a solid commitment to helping industry rebuild a positive image in the light of the West, TX tragedy. Helping our clients with ResponsibleAg is a proactive effort and essentially is covered under our retainer program as an additional service.
ResponsibleAg - Get a Head Start!
How do I get a head start in preparing for the ResponsibleAg third-party audit? If you haven't already, complete the Comprehensive Risk Evaluation (CoRE) for your facility as soon as possible. Since the ResponsibleAg audit will check for compliance at each facility based on a comprehensive list of regulatory requirements - completing CoRE will allow you to self-audit your facility in preparation for the day when the ResponsibleAg auditor will show up. Click here to get started or to check your score if you have already started the CoRE process.
J.J. Keller & Associates Advises: "This is Not Your Father's Buick!"
The traditional way of managing and thinking is to keep heading in a secure direction where the future is somewhat predictable. This method is usually based on standards that have been achieved in the past. The danger in this is the motor carrier's inability to see exactly where business trends, including industry changes, are leading, and then failing to make the necessary adjustments based on those trends. The carrier's existence may be secure for a period of time. However, they may soon find they are running the risk of falling behind.
The motor carrier industry continues to make adjustments to the FMCSA's safety improvement requirements. For motor carriers adapting to this new safety culture, it has not been a trouble-free series of adjustments. Even though the vast majority of safety rules and regulations have never been altered or "re-invented," many motor carriers find themselves managing their business from a whole new point of view.
The CSA program, EOBRs, and recent changes to the hours-of-service rules have gained the attention of carriers making efforts to stay up with industry reform:
  • No longer does the industry resemble the way it used to be.
  • No more allowing vehicles on the road with brakes not quite up to standard.
  • No more log books with false information. No more driving long, extended hours without breaks and sufficient off-duty time.
Some of these activities will still occur, especially by those who believe that they can do what they want without being penalized. However, the penalties are now harsh enough that the driver and the company will be disciplined both productively and monetarily.
Those carriers and drivers who wish to play by the rules must know what the rules are. They must consistently review company safety practices and measure them against industry trends and developments. If the carrier does not follow up and consistently review company safety practices, a gap soon begins to form between the carrier's culture and industry standards.
More changes to the motor carrier industry are in the near future. These changes will affect commercial driver's licenses (CDLs) and endorsements, registration of vehicles, Electronic Logging Devices (ELDs), and a Drug and Alcohol Clearinghouse that maintains information on drivers drug and alcohol results, giving the employer the best opportunity to put a safe driver in the driver's seat...and not the seat of "your father's Buick!"
Louisiana Court Orders EPA to Assess Fertilizer Runoff
EPA has been ordered by the U.S. District Court in Louisiana to determine if it should establish new limits on fertilizer pollution that is contributing to algae blooms in the Mississippi River basin, the Gulf of Mexico and other waters across the country. The court's decision does not tell EPA how to address the problem, only that it has to make a decision. The lawsuit challenged EPA's denial of the Mississippi's River Collaborative's 2008 petition to EPA asking it to establish quantifiable standards and clean-up plans for nitrogen and phosphorus pollution. It has been reported that the suit claimed that EPA had unlawfully refused to respond to the question of whether federal action is necessary to comply with the Clean Water Act. The U.S. District Court agreed with the plaintiffs, led by the Natural Resources Defense Council, that the EPA's refusal to provide a direct answer was unlawful. The lawsuit was filed on behalf of several conservation groups determined to break longstanding inaction by the federal government regarding fertilizer pollution in the nation's waterways.
OSHA Enforcement Rises
Enforcement of worker death and injury cases by OSHA is up across the board and criminal prosecutions of worker death cases are sure to follow. OSHA enforcement is up in every measurable metric, including number of inspections, number of inspections resulting in citations, number of citations per inspection, average penalty per violation, average penalty per inspection, number of significant cases - cases with $100,000 penalties or more, million dollar cases according to the report. The report goes on to say it is all up somewhat significantly since 2009. Click here to read the entire story.
New "Boot Pit" Guidance Document Available
Over the last year, OSHA's current enforcement position appears to be that boot pits are - by default - Permit Required Confined Spaces (PRCS), because there is always some potential (no matter how remote) that water will enter a boot pit and mix with grain and dust to form an atmospheric hazard, such as hydrogen sulfide. Jess McCluer, Director of Safety and Regulatory Affairs for the National Grain and Feed Association (NGFA), developed a guidance document to assist grain handlers in evaluating if a "boot pit" is a Permit Required Confined Space (PRCS) under OSHA's standards. Based on numerous citations reported by NGFA members across the country, the committee concluded that boot pits seem to be becoming the "new" area of OSHA enforcement focus, particularly in some regions where grain handling facilities are part of the local emphasis enforcement program. As a result, the committee recommended that NGFA take a proactive approach by developing appropriate guidance tools to describe the necessary procedures for assessing whether boot pits are PRCSs. If you are interested in this subject and would like a copy of the new guidance document contact, NGFA or the Asmark Institute.
CCA Program Celebrates 20th Anniversary!
The Certified Crop Adviser (CCA) program celebrates its 20th anniversary this year, and continues to strive for excellence in agriculture by challenging agronomists to maintain their expertise. The CCA program was established due to a need for increased agronomic expertise to address environmental concerns, which revolved mostly around fertilizer nutrient use and management. By identifying agronomists who meet high standards of expertise for growers to consult, the CCA program has been able to help solve and reduce such problems in the environment.
United States Postal Service Announces New Prices for 2014
The United States Postal Service has announced a price increase in the price of a First-Class Mail single-piece letter from 46 cents to 49 cents. The proposed changes would go into effect in January 2014.
Court's Chesapeake Bay Decision Deals a Blow to Farmers Nationwide
A Federal District Court's recent decision upholding EPA's total maximum daily load (TMDL) for the Chesapeake Bay puts federal agency staff in charge of intensely local land use decisions. The American Farm Bureau Federation and other groups challenged the TMDL as an unlawful overreach of EPA's power under the Clean Water Act and as based on faulty science and inadequate opportunity for public comment. This ruling would essentially give the EPA power to tell a farmer he can't work the land anymore. The TMDL affects towns, homebuilders, forest landowners and anyone else whose activities may result in nutrient or sediment runoff across the Bay's 64,000 mile watershed. An appeal is likely.
OSHA Numbers Show Ag with Highest Fatality Rate
As the National Farm Safety & Health Week ended September 21st, OSHA reported agriculture has the highest recorded fatality rate of any U.S. industry sector. The ag sector recorded 475 deaths in 2012, for a fatality rate of 21.2 per 100,000 full time workers.
OSHA reported that in 2010, "at least 26 workers were killed in grain engulfments," the highest on record. This led OSHA to develop its Local Emphasis Program for Grain Handling Facilities, focusing on the grain and feed industry's six major hazards, including engulfment, falls, auger entanglement, "struck by," combustible dust explosions and electrocution hazards.
Michigan Potash Deposit Worth $65 Billion
A Michigan company is developing a potash deposit worth $65 billion, which could establish the state as a leading supplier of the key fertilizer. Western Michigan University's Michigan Geological Repository for Research and Education, working in conjunction with the company Michigan Potash, said that it has rediscovered a mineral deposit in West Michigan potentially worth billions of dollars that could establish Michigan as a leading U.S. supplier of a key fertilizer used by farmers worldwide, reports the Kalamazoo Gazette.
"This is the United States" only shovel-ready potash project," said Theodore Pagano, a potash geologist, engineer and general manager of Michigan Potash Company, the company that now controls the Borgen Bed, which lies under 14,500 acres in Mecosta and Osceola counties. "What we're looking at is the introduction of an industry that is critical to the economic health of the state. We'll be producing a Michigan product for Michigan farmers that would dramatically reduce the expensive transport costs on the more than 300,000 tons of potash consumed in our state annually."
Revised SPCC Guidance for Regional Inspectors Issued
In August 2013, EPA revised the document entitled SPCC Guidance for Regional Inspectors (EPA550-B-13-001). The document provides guidance to EPA inspectors, to owners and operators of facilities that may be subject to the requirements of the SPCC Rule (40 CFR Part 112) and to the general public on how EPA intends the SPCC Rule to be implemented. The guidance is designed to facilitate nationally consistent implementation of the SPCC Rule. The document was originally published in 2005, and was revised to include amendments made in December 2006, December 2008, November 2009 and April 2011. Click here to view the guidance document.
Comment Period to Open on Phase II of Fumigant Labels
EPA is in the process of the re-licensing decisions for soil fumigants for the following products:
  • Methyl Bromide
  • Chloropicrin
  • Metam Sodium/Metam Potassium
  • Dazomet
It is EPA's intent to:
  • Reduce potential for direct exposure to toxic concentrations
  • Reduce the likelihood of accidents and errors
  • Foster planning & compliance
  • Assure appropriate response to exposures
Re-licensing was to take place in several phases:
  1. All Federal & State approvals completed with new labels appearing December 2010.
  2. EPA approves all labels by January 2012, hold monthly meetings with States and registrants and have new labels appear around December 2012.
  3. Registration Review begins in 2013 for all fumigants. FIFRA requirements are to re-evaluate the safety of products every 15 years.
Comments are expected to open soon and extend to November of this year; the first opportunity for applicators to comment since phase II was implemented.
DOT Issues New Motor Carrier Registration System and Rules
DOT has published a final rule, Unified Registration System (URS), amending its regulations to require interstate motor carriers, freight forwarders, brokers, intermodal equipment providers (IEPs), hazardous materials safety permit (HMSP) applicants and cargo tank facilities under FMCSA jurisdiction to submit required registration and biennial update information to the Agency using a new electronic on-line Unified Registration System (URS). The implementation of the URS final rule consolidates the following registration and information systems:
  • The U.S. Department of Transportation (USDOT) identification number system;
  • The commercial registration system to obtain for-hire operating authority/MC Number;
  • The financial responsibility information system; and
  • The service of process agent designation system.
The URS is designed to streamline the registration process and serve as a clearinghouse and depository of information on, and identification of, all entities required to register with DOT.
Provisions in the final rule include:
  • Form MCSA-1. Replaces the current MCS-150 and OP-1 forms. The Form MCSA-1 must be submitted electronically; it is an interactive form, requiring applicants to see and complete only the sections that apply to their operation. Carriers that currently have a USDOT number do not have to file the MCSA-1 until they are required to update their information.
  • Designation of process agent. URS requires all private carriers and exempt for-hire motor carriers to file proof of designation of process agents with the FMCSA. All entities must report changes to process agent designations to the FMCSA within 30 days of the change. Also, when a motor carrier has a change in name, address or contact information, the motor carrier must provide notice of the change to its process agents and/or the company making a blanket designation on its behalf within 30 days of the change.
  • The effective date and compliance date for this provision is April 25, 2016. Existing private carriers and exempt for-hire carriers must file a designation of process agent (Form BOC-3) by the compliance date.
  • Financial responsibility filing. A provision in the final rule requires private hazardous materials and exempt for-hire motor carriers to file proof of liability insurance with FMCSA. These entities are already subject to the financial responsibility requirements of 49 CFR 387, which require them to have and maintain the required amount of financial responsibility. Exempt for-hire carriers and private carriers of hazardous materials must file proof of insurance by October 23, 2015.
  • Biennial update. A motor carrier that fails to update their Form MCSA-1 information every two years will be subject to deactivation of their USDOT number. This provision is effective and compliance is required on November 1, 2013. Beginning November 1, 2013, the FMCSA will issue a warning letter 30 days in advance of a biennial update deadline to notify the entity that its USDOT Number will be deactivated if it fails to comply with the biennial update requirement. Only after an entity has failed to heed that warning will the Agency begin deactivating USDOT registrations for failure to update the information on Form MCSA-1 and consider imposing civil penalties. FMCSA, however, will not retroactively apply sanctions against entities that had not met the biennial update requirement by November 1, 2013.
  • USDOT registration required. 49 CFR 392.9b has been added to prohibit a motor carrier with an inactive DOT number from operating a commercial motor vehicle; violation of this provision subjects the motor carrier to civil penalties. The effective and compliance date for this provision is November 1, 2013.
  • Filing changes to name, address, form of business. The final rule requires all entities to notify FMCSA of any changes to legal name, form of business or address, within 30 days of the precipitating change.
  • New USDOT number. New applicants will be issued an inactive USDOT number; the USDOT number will be activated by the FMCSA only after all required filings (financial responsibility, if required, and process agent designation) are completed. If the applicant is also requesting operating authority (non-exempt for-hire carriers only), the USDOT number will remain inactive until all protests have been resolved and all required filings are complete. A carrier may not operate until the USDOT number is activated.
  • USDOT number sole identifier. FMCSA will use the USDOT Number as its sole unique identifier for motor carriers, brokers and freight forwarders, subject to its regulations. The URS will discontinue issuance of MC, MX and FF Numbers. MAP-21 also amended 49 U.S.C. 13901 to require distinctive USDOT Numbers for each type of authority issued. For example, an entity applying for both broker and motor carrier authority would receive a different USDOT Number for each type of authority. This MAP-21 provision also requires that the USDOT Number include an "indicator" of the type of authority issued; FMCSA will address this requirement in a separate rulemaking.
  • Registration fees. The final rule includes a new requirement for private and exempt for-hire motor carriers, cargo tank facilities, and intermodal equipment providers (IEPs) to pay a $300 registration fee when submitting a new application.
The effective and compliance date for this final rule is October 23, 2015, except for the provisions noted above with separate effective/compliance dates. The Moving Ahead for Progress in the 21st Century Act (MAP-21) was enacted on July 6, 2012 and includes several provisions that are relevant to the implementation of the URS. Many of these statutory provisions will require separate rulemakings to implement regulations.
Courts Could Hinder Obama's Regulatory Goals
As President Barack Obama tries to drive around a hostile Congress by using the regulatory process, he may run into new roadblocks in the federal courts. States have filed 89 lawsuits to block implementation of sections of new federal regulations, and, unfortunately for the president, his administration and the federal courts don't always get along. "The relationship is sort of like a bad marriage -- neither can get out of it, so they just keep fighting," said UCLA law professor Adam Winkler.
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: ResponsibleAg
In the wake of the West Fertilizer tragedy, the regulatory agencies - both State and Federal - have come under fire for their actions and coordination, or lack thereof. Both regulators and legislators agree our industry is already heavily regulated and frankly they don't know how to fix the problem. Following the explosion in West, TX, the regulatory agencies readily admitted they don't understand our industry. This lack of understanding has been recognized as stifling any meaningful outreach to help facilities comply.
The circumstances that have developed since the explosion has presented an opportunity to "do something" proactive to help make sure all the locations know what the rules are and abide by them voluntarily.
With every day that passes comes a new Executive Order, commission report or regulatory panel that indicates the need for tighter regulation. It is essential that our industry check itself as soon as possible or the government agencies will come up with more new rules "they think" will help ensure another West Fertilizer doesn't ever happen again.
ResponsibleAg will help ensure our industry is aware of, and complies with, the regulations that are already in place. ResponsibleAg is already working to prevent additional unnecessary regulations. ResponsibleAg will need your support!
Asmark Institute Selected to Develop/Administer ResponsibleAg
The Asmark Institute has been selected to build the ResponsibleAg database and website and administer the program. The Asmark Institute Board of Directors approved a proposal that would allow the staff to build the infrastructure and administer the program free of charge for time or talent, asking only for out-of-pocket reimbursements like hardware, software, postage, UPS, etc. This is a significant contribution by an organization and backs a solid commitment to helping industry rebuild a positive image in the light of the West, TX tragedy. Helping our clients with ResponsibleAg is a proactive effort and essentially is covered under our retainer program as an additional service.
ResponsibleAg - Get a Head Start!
How do I get a head start in preparing for the ResponsibleAg third-party audit? If you haven't already, complete the Comprehensive Risk Evaluation (CoRE) for your facility as soon as possible. Since the ResponsibleAg audit will check for compliance at each facility based on a comprehensive list of regulatory requirements - completing CoRE will allow you to self-audit your facility in preparation for the day when the ResponsibleAg auditor will show up. Click here to get started or to check your score if you have already started the CoRE process.
J.J. Keller & Associates Advises: "This is Not Your Father's Buick!"
The traditional way of managing and thinking is to keep heading in a secure direction where the future is somewhat predictable. This method is usually based on standards that have been achieved in the past. The danger in this is the motor carrier's inability to see exactly where business trends, including industry changes, are leading, and then failing to make the necessary adjustments based on those trends. The carrier's existence may be secure for a period of time. However, they may soon find they are running the risk of falling behind.
The motor carrier industry continues to make adjustments to the FMCSA's safety improvement requirements. For motor carriers adapting to this new safety culture, it has not been a trouble-free series of adjustments. Even though the vast majority of safety rules and regulations have never been altered or "re-invented," many motor carriers find themselves managing their business from a whole new point of view.
The CSA program, EOBRs, and recent changes to the hours-of-service rules have gained the attention of carriers making efforts to stay up with industry reform:
  • No longer does the industry resemble the way it used to be.
  • No more allowing vehicles on the road with brakes not quite up to standard.
  • No more log books with false information. No more driving long, extended hours without breaks and sufficient off-duty time.
Some of these activities will still occur, especially by those who believe that they can do what they want without being penalized. However, the penalties are now harsh enough that the driver and the company will be disciplined both productively and monetarily.
Those carriers and drivers who wish to play by the rules must know what the rules are. They must consistently review company safety practices and measure them against industry trends and developments. If the carrier does not follow up and consistently review company safety practices, a gap soon begins to form between the carrier's culture and industry standards.
More changes to the motor carrier industry are in the near future. These changes will affect commercial driver's licenses (CDLs) and endorsements, registration of vehicles, Electronic Logging Devices (ELDs), and a Drug and Alcohol Clearinghouse that maintains information on drivers drug and alcohol results, giving the employer the best opportunity to put a safe driver in the driver's seat...and not the seat of "your father's Buick!"
Louisiana Court Orders EPA to Assess Fertilizer Runoff
EPA has been ordered by the U.S. District Court in Louisiana to determine if it should establish new limits on fertilizer pollution that is contributing to algae blooms in the Mississippi River basin, the Gulf of Mexico and other waters across the country. The court's decision does not tell EPA how to address the problem, only that it has to make a decision. The lawsuit challenged EPA's denial of the Mississippi's River Collaborative's 2008 petition to EPA asking it to establish quantifiable standards and clean-up plans for nitrogen and phosphorus pollution. It has been reported that the suit claimed that EPA had unlawfully refused to respond to the question of whether federal action is necessary to comply with the Clean Water Act. The U.S. District Court agreed with the plaintiffs, led by the Natural Resources Defense Council, that the EPA's refusal to provide a direct answer was unlawful. The lawsuit was filed on behalf of several conservation groups determined to break longstanding inaction by the federal government regarding fertilizer pollution in the nation's waterways.
OSHA Enforcement Rises
Enforcement of worker death and injury cases by OSHA is up across the board and criminal prosecutions of worker death cases are sure to follow. OSHA enforcement is up in every measurable metric, including number of inspections, number of inspections resulting in citations, number of citations per inspection, average penalty per violation, average penalty per inspection, number of significant cases - cases with $100,000 penalties or more, million dollar cases according to the report. The report goes on to say it is all up somewhat significantly since 2009. Click here to read the entire story.
New "Boot Pit" Guidance Document Available
Over the last year, OSHA's current enforcement position appears to be that boot pits are - by default - Permit Required Confined Spaces (PRCS), because there is always some potential (no matter how remote) that water will enter a boot pit and mix with grain and dust to form an atmospheric hazard, such as hydrogen sulfide. Jess McCluer, Director of Safety and Regulatory Affairs for the National Grain and Feed Association (NGFA), developed a guidance document to assist grain handlers in evaluating if a "boot pit" is a Permit Required Confined Space (PRCS) under OSHA's standards. Based on numerous citations reported by NGFA members across the country, the committee concluded that boot pits seem to be becoming the "new" area of OSHA enforcement focus, particularly in some regions where grain handling facilities are part of the local emphasis enforcement program. As a result, the committee recommended that NGFA take a proactive approach by developing appropriate guidance tools to describe the necessary procedures for assessing whether boot pits are PRCSs. If you are interested in this subject and would like a copy of the new guidance document contact, NGFA or the Asmark Institute.
CCA Program Celebrates 20th Anniversary!
The Certified Crop Adviser (CCA) program celebrates its 20th anniversary this year, and continues to strive for excellence in agriculture by challenging agronomists to maintain their expertise. The CCA program was established due to a need for increased agronomic expertise to address environmental concerns, which revolved mostly around fertilizer nutrient use and management. By identifying agronomists who meet high standards of expertise for growers to consult, the CCA program has been able to help solve and reduce such problems in the environment.
United States Postal Service Announces New Prices for 2014
The United States Postal Service has announced a price increase in the price of a First-Class Mail single-piece letter from 46 cents to 49 cents. The proposed changes would go into effect in January 2014.
Court's Chesapeake Bay Decision Deals a Blow to Farmers Nationwide
A Federal District Court's recent decision upholding EPA's total maximum daily load (TMDL) for the Chesapeake Bay puts federal agency staff in charge of intensely local land use decisions. The American Farm Bureau Federation and other groups challenged the TMDL as an unlawful overreach of EPA's power under the Clean Water Act and as based on faulty science and inadequate opportunity for public comment. This ruling would essentially give the EPA power to tell a farmer he can't work the land anymore. The TMDL affects towns, homebuilders, forest landowners and anyone else whose activities may result in nutrient or sediment runoff across the Bay's 64,000 mile watershed. An appeal is likely.
OSHA Numbers Show Ag with Highest Fatality Rate
As the National Farm Safety & Health Week ended September 21st, OSHA reported agriculture has the highest recorded fatality rate of any U.S. industry sector. The ag sector recorded 475 deaths in 2012, for a fatality rate of 21.2 per 100,000 full time workers.
OSHA reported that in 2010, "at least 26 workers were killed in grain engulfments," the highest on record. This led OSHA to develop its Local Emphasis Program for Grain Handling Facilities, focusing on the grain and feed industry's six major hazards, including engulfment, falls, auger entanglement, "struck by," combustible dust explosions and electrocution hazards.
Michigan Potash Deposit Worth $65 Billion
A Michigan company is developing a potash deposit worth $65 billion, which could establish the state as a leading supplier of the key fertilizer. Western Michigan University's Michigan Geological Repository for Research and Education, working in conjunction with the company Michigan Potash, said that it has rediscovered a mineral deposit in West Michigan potentially worth billions of dollars that could establish Michigan as a leading U.S. supplier of a key fertilizer used by farmers worldwide, reports the Kalamazoo Gazette.
"This is the United States" only shovel-ready potash project," said Theodore Pagano, a potash geologist, engineer and general manager of Michigan Potash Company, the company that now controls the Borgen Bed, which lies under 14,500 acres in Mecosta and Osceola counties. "What we're looking at is the introduction of an industry that is critical to the economic health of the state. We'll be producing a Michigan product for Michigan farmers that would dramatically reduce the expensive transport costs on the more than 300,000 tons of potash consumed in our state annually."
Revised SPCC Guidance for Regional Inspectors Issued
In August 2013, EPA revised the document entitled SPCC Guidance for Regional Inspectors (EPA550-B-13-001). The document provides guidance to EPA inspectors, to owners and operators of facilities that may be subject to the requirements of the SPCC Rule (40 CFR Part 112) and to the general public on how EPA intends the SPCC Rule to be implemented. The guidance is designed to facilitate nationally consistent implementation of the SPCC Rule. The document was originally published in 2005, and was revised to include amendments made in December 2006, December 2008, November 2009 and April 2011. Click here to view the guidance document.
Comment Period to Open on Phase II of Fumigant Labels
EPA is in the process of the re-licensing decisions for soil fumigants for the following products:
  • Methyl Bromide
  • Chloropicrin
  • Metam Sodium/Metam Potassium
  • Dazomet
It is EPA's intent to:
  • Reduce potential for direct exposure to toxic concentrations
  • Reduce the likelihood of accidents and errors
  • Foster planning & compliance
  • Assure appropriate response to exposures
Re-licensing was to take place in several phases:
  1. All Federal & State approvals completed with new labels appearing December 2010.
  2. EPA approves all labels by January 2012, hold monthly meetings with States and registrants and have new labels appear around December 2012.
  3. Registration Review begins in 2013 for all fumigants. FIFRA requirements are to re-evaluate the safety of products every 15 years.
Comments are expected to open soon and extend to November of this year; the first opportunity for applicators to comment since phase II was implemented.
DOT Issues New Motor Carrier Registration System and Rules
DOT has published a final rule, Unified Registration System (URS), amending its regulations to require interstate motor carriers, freight forwarders, brokers, intermodal equipment providers (IEPs), hazardous materials safety permit (HMSP) applicants and cargo tank facilities under FMCSA jurisdiction to submit required registration and biennial update information to the Agency using a new electronic on-line Unified Registration System (URS). The implementation of the URS final rule consolidates the following registration and information systems:
  • The U.S. Department of Transportation (USDOT) identification number system;
  • The commercial registration system to obtain for-hire operating authority/MC Number;
  • The financial responsibility information system; and
  • The service of process agent designation system.
The URS is designed to streamline the registration process and serve as a clearinghouse and depository of information on, and identification of, all entities required to register with DOT.
Provisions in the final rule include:
  • Form MCSA-1. Replaces the current MCS-150 and OP-1 forms. The Form MCSA-1 must be submitted electronically; it is an interactive form, requiring applicants to see and complete only the sections that apply to their operation. Carriers that currently have a USDOT number do not have to file the MCSA-1 until they are required to update their information.
  • Designation of process agent. URS requires all private carriers and exempt for-hire motor carriers to file proof of designation of process agents with the FMCSA. All entities must report changes to process agent designations to the FMCSA within 30 days of the change. Also, when a motor carrier has a change in name, address or contact information, the motor carrier must provide notice of the change to its process agents and/or the company making a blanket designation on its behalf within 30 days of the change.
  • The effective date and compliance date for this provision is April 25, 2016. Existing private carriers and exempt for-hire carriers must file a designation of process agent (Form BOC-3) by the compliance date.
  • Financial responsibility filing. A provision in the final rule requires private hazardous materials and exempt for-hire motor carriers to file proof of liability insurance with FMCSA. These entities are already subject to the financial responsibility requirements of 49 CFR 387, which require them to have and maintain the required amount of financial responsibility. Exempt for-hire carriers and private carriers of hazardous materials must file proof of insurance by October 23, 2015.
  • Biennial update. A motor carrier that fails to update their Form MCSA-1 information every two years will be subject to deactivation of their USDOT number. This provision is effective and compliance is required on November 1, 2013. Beginning November 1, 2013, the FMCSA will issue a warning letter 30 days in advance of a biennial update deadline to notify the entity that its USDOT Number will be deactivated if it fails to comply with the biennial update requirement. Only after an entity has failed to heed that warning will the Agency begin deactivating USDOT registrations for failure to update the information on Form MCSA-1 and consider imposing civil penalties. FMCSA, however, will not retroactively apply sanctions against entities that had not met the biennial update requirement by November 1, 2013.
  • USDOT registration required. 49 CFR 392.9b has been added to prohibit a motor carrier with an inactive DOT number from operating a commercial motor vehicle; violation of this provision subjects the motor carrier to civil penalties. The effective and compliance date for this provision is November 1, 2013.
  • Filing changes to name, address, form of business. The final rule requires all entities to notify FMCSA of any changes to legal name, form of business or address, within 30 days of the precipitating change.
  • New USDOT number. New applicants will be issued an inactive USDOT number; the USDOT number will be activated by the FMCSA only after all required filings (financial responsibility, if required, and process agent designation) are completed. If the applicant is also requesting operating authority (non-exempt for-hire carriers only), the USDOT number will remain inactive until all protests have been resolved and all required filings are complete. A carrier may not operate until the USDOT number is activated.
  • USDOT number sole identifier. FMCSA will use the USDOT Number as its sole unique identifier for motor carriers, brokers and freight forwarders, subject to its regulations. The URS will discontinue issuance of MC, MX and FF Numbers. MAP-21 also amended 49 U.S.C. 13901 to require distinctive USDOT Numbers for each type of authority issued. For example, an entity applying for both broker and motor carrier authority would receive a different USDOT Number for each type of authority. This MAP-21 provision also requires that the USDOT Number include an "indicator" of the type of authority issued; FMCSA will address this requirement in a separate rulemaking.
  • Registration fees. The final rule includes a new requirement for private and exempt for-hire motor carriers, cargo tank facilities, and intermodal equipment providers (IEPs) to pay a $300 registration fee when submitting a new application.
The effective and compliance date for this final rule is October 23, 2015, except for the provisions noted above with separate effective/compliance dates. The Moving Ahead for Progress in the 21st Century Act (MAP-21) was enacted on July 6, 2012 and includes several provisions that are relevant to the implementation of the URS. Many of these statutory provisions will require separate rulemakings to implement regulations.
Courts Could Hinder Obama's Regulatory Goals
As President Barack Obama tries to drive around a hostile Congress by using the regulatory process, he may run into new roadblocks in the federal courts. States have filed 89 lawsuits to block implementation of sections of new federal regulations, and, unfortunately for the president, his administration and the federal courts don't always get along. "The relationship is sort of like a bad marriage -- neither can get out of it, so they just keep fighting," said UCLA law professor Adam Winkler.
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.