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Newsletter
Volume 125
April 1, 2014
ResponsibleAg Announced at Senate Hearing
Senate Hearing for ResponsibleAg
ARA and TFI announced plans on February 18th to create ResponsibleAg, an independent, not-for-profit organization designed to support fertilizer retailers' compliance with federal safety and security regulations. Wasting no time, Billy Pirkle, Senior Director of Environment, Health and Safety for Crop Production Services, was invited to testify on behalf of The Fertilizer Institute before the U.S. Senate Committee on Environment and Public Works (EPW) on March 6th. The hearing was titled "Preventing Potential Chemical Threats and Improving Safety: Oversight of the President's Executive Order on Improving Chemical Facility Safety and Security." Topics discussed at the hearing included the accident at the West Fertilizer facility in West, Texas, the recent chemical spill in the Elk River near Charleston, West Virginia, the use of Inherently Safer Technologies (IST) and the President's Executive Order 13650.
Billy used the forum to announce the launch of ResponsibleAg and answer questions on behalf of our industry. It is particularly noteworthy that Chairman Barbara Boxer (D-CA) voiced her strong support for ResponsibleAg and praised the industry for taking voluntary action. In addition, she offered her assistance in encouraging industry participation in such an important initiative. "I'm very pleased to see this," she said. "I do encourage all of these players to join, because at the end of the day, the costs to the industry are enormous. I think it's a smart thing to do," said Boxer. Our sincere thanks to Billy for sharing his expertise and time to testify on behalf of our industry. Billy represented industry in a positive light with his message outlining the voluntary efforts the ag industry is taking to demonstrate its commitment to safety and security. Click here for a copy of TFI's testimony and video of the hearing.
Retirement Wishes: Richard Gearheard
As March passed we congratulated Richard Gearheard, President of Agrium Retail, on his career of 41 years. Richard announced his retirement earlier this year after successfully leading the Agrium Retail organization for many years. Just as his work has obviously been long and satisfying, we wish him an equally long and satisfying retirement. Given his work ethic and love of the industry, we believe that he may still show up at work, even though he is retired. Congratulations Richard and best wishes for a healthy and fun retirement!
One Man's Junk....
In the coming months we will formally announce an exciting new project that will be another first-of-its-kind and benefit the industry. In the meantime we would ask that you contact us if you are removing any "well-worn" equipment from service around your retail facility. Since one man's junk is another man's treasure, we have need for a variety of "well-used" equipment such as a seed treater, seed bin, forklift, a wide range of minibulk tanks and bulk seed totes/hoppers. Of particular interest is any item such as a hand tool, ladder, extension cord, bench grinder or similar item required to be removed from service due to an audit or inspection. We will also need close to a thousand empty 4/1 and 2/2.5 gallon cases. Please contact Allen at 270-926-4600, Ext 201 or allen@asmark.org if you have an opportunity.
New Phone System: Direct Path to a Live Person
We are wrapping up the installation of a new phone system designed to reward callers that know the extension of the person they need. A complete list of Asmark Institute staff and their extensions can be found in the last article of this newsletter. Click here for a current list of staff from our website. Kendal will help any callers that don't know the extension of the person they need. The new system uses logic to route calls to the first available in a group such as driver files or training.
Tier 2 Fee Legislation Defeated in IL
An Illinois bill which proposed to establish fees as high as $450 per facility for companies who submit annual SARA Tier 2 reports was defeated according to K.J. Johnson, Illinois Fertilizer and Chemical Association's Director of Government & Industry Relations. He, along with other industry representatives, provided testimony at the committee outlining the reasons for opposition to the fees.
And Safety For All: Ensuring your facility has a game plan for when inspectors do not play by the rules
Recently, an association member presented an interesting - if not alarming - question to association staff. The member described a situation where an inspector with a federal agency failed to follow standard operating safety procedures regarding bin entry. Even after the inspector was notified of the safety rule, and was asked to comply, the facility could not gain compliance with the safety standard.
What is a facility to do in this situation?
As an industry, we are acutely aware of our legal, regulatory and moral duty to ensure the safety of all persons on-site, at all times. Clearly, we understand that our safety standards and procedures apply to our employees, on-site contract workers and visitors. We are made especially aware of this standard by the heightened scrutiny placed on our industry under OSHA's Local Emphasis Program.
However, unique circumstances exist during interactions when official state and federal inspection personnel are on-site. The normal flow of daily operations is interrupted, and Operations Managers and Safety Officers find themselves removed from their normal duties to locate and provide records, answer questions, and accompany inspectors around the facility. Through all of this, we can become preoccupied and not fully recognize our duty to ensure the safety of the inspection staff, or assume that they will automatically conduct themselves in a professional and safe manner.
So what happens in the rare circumstance when inspection personnel unnecessarily expose themselves to unsafe or hazardous situations in violation of our (and OSHA) safety standards? Are our hands tied so that the inspectors simply have free reign of our facilities?
In finding answers to these difficult - but vitally important - questions, Randy Stookey, Vice President and General Counsel for the Kansas Grain and Feed Association, spoke with the Acting Director of DOL/OSHA's Regional Office in Wichita, and received the following guidance on the proper procedure to handle such situations:
  1. Federal agencies are required to promulgate safety standard operating procedures (SOP) for their employees. (29 CFR, Part 1960.1(g)).
  2. When a federal inspector is on-site at a facility, that inspector is required to follow the agency's inspection SOPs and safety procedures.
  3. Federal inspectors are also required to comply with all OSHA industry workplace safety standards.
  4. If an inspector's activities are not consistent with OSHA workplace safety standards, then the facility may expose themselves to both private liability and regulatory enforcement action for any injuries caused by accidents related to that noncompliant, unsafe behavior.
  5. In order to protect the facility from liability and regulatory enforcement actions, it is advised that the facility's safety officer initially notify inspection personnel of its safety SOPs prior to the inspection, make a record of that notice and accompany the inspection personnel at all times while on-site.
  6. If the safety officer observes any unsafe activity by the inspection personnel, the safety officer should immediately notify the inspector of the safety SOP requirement, explain why the action is unsafe and in violation of the safety SOP, and provide the inspector with an alternative action in compliance with the safety SOP.
  7. If the inspection personnel refuses to comply with the safety SOP and continues the unsafe activity, the safety officer should request a brief delay in the inspection in order to consult with the inspection personnel's supervisor.
  8. The safety officer, or operations officer, should then immediately contact the inspection personnel's supervisor to find a resolution to the situation, being prepared to provide the inspection personnel's supervisor with the following information: the site location, the name of the inspector, the pertinent facts of the safety violation to include the safety standard that was/or would have been violated, the request that was made to the inspector to alter their activity and the inspector's response to that request.
  9. If the matter is resolved through contact with the area supervisor, then the safety officer should make an internal memorandum of record detailing:
    • the site location and a general description of the site
    • the name of the inspector(s)
    • the date of the incident (or incidents if this has happened on prior occasions)
    • a record of the safety briefing, if any, conducted prior to the inspection
    • the pertinent facts of the safety violation to include the standard that was/or would have been violated
    • the clear directive/request that was made to the inspector to stop the unsafe activity
    • the inspector's specific response to that directive
    • the fact that the inspector was provided with an alternative action to complete the inspection in a manner that was consistent with safety standards
    • the inspection personnel's response to the alternative action request
    • the name and contact information of the person that the safety officer or operations officer contacted in the inspector's chain of command following the inspector's refusal to follow the safety SOP and directive, and
    • any other information deemed relevant to the situation.
  10. Note: This is a vitally important step in protecting the elevator from future civil suit or regulatory enforcement actions.
  11. If the matter is not resolved through contacting the inspection personnel's supervisor, then the safety officer should contact their area OSHA office or KGFA for further assistance.
  12. When the safety officer contacts the area OSHA office or KGFA, he/she should be prepared to provide all of the information above, along with a brief explanation of the response received from the inspector's supervisor, and why that response did not resolve the situation.
  13. Remember that the more facts you can provide to OSHA the better OSHA will be equipped to assist the elevator in resolving the noncompliance.
Remember, most inspectors intend to do their job in a professional and safe manner. The best approach to resolving any issue with inspection personnel is to address the issue on the lowest (and most direct) level as possible. As always, your association staff is here to assist you whenever possible. This article was made possible by Randy Stookey, Vice President and General Counsel for the Kansas Grain and Feed Association (KGFA) and Kansas Agribusiness Retailers Association (KARA). We appreciate Randy allowing us to share this thought-provoking article with our members.
Ag Industry Receives Positive Editorials
Following the announcement of ResponsibleAg a number of news organizations published positive editorials on the industry's voluntary efforts to prevent another tragedy like happened in West, Texas. Click here to read the Waco Tribune article. In early March, Chris Jahn, President of TFI and Kathy Mathers, Vice President of Public Affairs for TFI, along with Daren Coppock, President of ARA, travelled to meet with the editorial board of the Dallas Morning News. During the meeting they detailed the steps the industry has taken in the wake of the West, Texas explosion and outlined plans for ResponsibleAg. Click here to read the Dallas Morning News editorial resulting from their visit.
ResponsibleAg Board of Directors Selected
The Fertilizer Institute (TFI) and Agricultural Retailers Association (ARA) recently announced the industry representatives to serve on the ResponsibleAg Board. Four representatives were carefully selected by TFI from a cross section representing the whole fertilizer supply chain. They are as follows:
  • Alicia Duke, Director, Health and Safety, Simplot
  • Justin Gough, Director, Agricultural Products, LSB/El Dorado Chemical Company
  • Pete Mutschler, Environmental and Safety Director, CHS Inc.
  • Rosemary O'Brien, Vice President, Public Affairs, CF Industries, Inc.
Five representatives were selected by ARA and are as follows:
  • Dave Ito, Manager, Human Resources & Regulatory Affairs, Lyman/Tremont Group
  • Tim McArdle, Executive Vice President & COO, Brandt Consolidated, Inc.
  • Billy Pirkle, Sr. Director, Environment, Health & Safety, Crop Production Services
  • Scott Rawlins, Director, Regulatory & Governmental Affairs, Wilbur-Ellis Company
  • Rod Wells, Manager, Plant Food Division, Growmark
West Plans Event To Observe One Year Memorial of Fertilizer Plant Explosion
The City of West, TX plans to create an event for the anniversary of the fertilizer plant explosion. West Mayor Tommy Muska appointed nine people to plan West's official event. The event will be held on Thursday, April 17, 2014 at 7:30 p.m. at the West Fair and Rodeo Grounds. The event is intended for the West community and those who were directly affected by the events of the evening of April 17, 2013.
The committee has adopted the name, "West 4/17 Forever Forward," marking the date of April 17, 2013 as a day that will forever be remembered in West, and "forward," describing the optimism and momentum toward the community's future.
National Registry of Certified Medical Examiners Coming in May
Effective May 21, 2014, all DOT medical physicals for truck drivers must be performed by a person listed on the National Registry. As long as an exam taken before that date was performed in accordance with Section 391.43, by someone defined as a medical examiner based on the prior regulations, it is valid through its expiration date. A CDL holder is still responsible for self-certifying and submitting his/her medical certificate to the state of licensing in order to operate a CDL vehicle in non-excepted, interstate commerce. The confusion lies in the fact that certified medical examiners are required to submit a monthly report to the Federal Motor Carrier Safety Administration (FMCSA) on the exams performed. This information is not shared with state licensing offices. J.J. Keller & Associates has informed us they are unaware of any pending changes to §391.41, §391.43, or the Medical Advisory Criteria to correspond with the implementation date of the National Registry. To determine if a physician is on the list, certified medical examiners are listed on the FMCSA website. Physicians can also register to become certified on the same site.
FMCSA Amends GCWR Definition
DOT recently announced the final change to the definition of Gross Combination Weight Rating (GCWR) for single unit trucks (not truck tractors) when they are towing a trailer and the GCWR is not included on the vehicle manufacturer's label. The final rule is effective April 18, 2014. The new definition for both CDL requirements in Section 383 and Federal Motor Carrier Safety Regulations in Section 390 will read:
Gross combination weight rating (GCWR) is the greater of:
  1. A value specified by the manufacturer of the power unit, if such value is displayed on the Federal Motor Vehicle Safety Standard certification label required by the National Highway Traffic Safety Administration, or
  2. The sum of the gross vehicle weight ratings (GVWRs) or the gross vehicle weights (GVWs) of the power unit and the towed unit(s), or any combination thereof, that produces the highest value. Exception: The GCWR of the power unit will not be used to define a commercial motor vehicle when the power unit is not towing another vehicle.
DOT Proposes Use of Electronic Logbooks
DOT has announced a proposal to require interstate commercial truck and bus companies to use Electronic Logging Devices (ELDs) in their vehicles to improve compliance with the safety rules that govern the number of hours a driver can work. The proposed rulemaking is hoped to significantly reduce the paperwork burden associated with hours-of-service recordkeeping for interstate truck and bus drivers - the largest in the federal government following tax-related filings - and improve the quality of logbook data. The agency believes the proposed rule will ultimately reduce hours-of-service violations by making it more difficult for drivers to misrepresent their time on logbooks and avoid detection by DOT and law enforcement personnel. Analysis shows it will also help reduce crashes by fatigued drivers and prevent approximately 20 fatalities and 434 injuries each year for an annual safety benefit of $394.8 million.
FMCSA Deactivating DOT Numbers if URS Not Renewed
The Federal Motor Carrier Safety Administration (FMCSA) said it has started to deactivate the DOT registration numbers of trucking companies overdue for updating their Unified Registration System (URS) data, which is due every other year. FMCSA sent out letters and e-mails to motor carriers in November 2013, warning them of the need to file the registration updates. URS is a company registration program (not vehicle registration) that applies to all interstate motor carriers (private and for-hire motor carriers of passengers and freight), freight forwarders, brokers, HM Safety Permit applicants/holders, and cargo tank manufacturing and repair facilities under FMCSA jurisdiction. The FMCSA notice said, "The agency will begin deactivating USDOT numbers starting in March 2014 for motor carriers due to update in January 2014 who failed to complete their biennial update." Every month the agency will proceed with purging carriers two months beyond deadline. Fines for failure to comply are $1,000 a day up to a maximum of $10,000. FMCSA said the DOT numbers themselves tell a company when to file. The last digit - 1 to 9 and then 0 - tells the month to register, January to October. The next-to-last digit indicates the year: odd numbers in odd-numbered years and evens in evens. URS is a separate program from Unified Carrier Registration, a system that collects carrier fees and distributes them to states.
"Clearinghouse" Proposal Officially Appears in Federal Register
A proposed rule on a Commercial Driver's License Drug and Alcohol Clearinghouse, authored by DOT, appeared, in the Federal Register on February 20, 2014. The proposal would establish a Clearinghouse, a database under DOT's administration, that will contain controlled substances (drug) and alcohol test result information for the holders of commercial driver's licenses (CDLs).
The proposed rule would require DOT-regulated motor carrier employers, Medical Review Officers (MROs), Substance Abuse Professionals (SAPs), and consortia/third party administrators (C/TPAs) supporting DOT testing programs to report specific information, including:
  • verified positive, adulterated, and substituted drug test results,
  • positive alcohol test results,
  • test refusals,
  • negative return-to-duty test results, and
  • information on follow-up testing.
The proposed rule would also require employers to report actual knowledge of traffic citations for driving a commercial motor vehicle (CMV) while under the influence (DUI) of alcohol or drugs.
The proposed rule would establish the terms of access to the database, including the conditions under which information would be submitted, accessed, maintained, updated, removed and released to prospective employers, current employers and other authorized entities. Finally, it would require laboratories that provide DOT-regulated motor carrier employers with DOT drug testing services to report, annual, summary information about their testing activities. This rule is mandated by Section 32402 of the Moving Ahead for Progress in the 21st Century Act.
You may submit comments by April 21, 2014, identified by docket number FMCSA-2010-0031 or RIN 2126-AB18, by any of the following methods: Federal eRulemaking Portal: http://www.regulations.gov. Fax: (202) 493-2251. Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. The telephone number is (202) 366-9329.
EPA and Army Corps Announce Water Protection Rule
U.S. EPA and the Army Corps of Engineers recently released a jointly-proposed new rule to clarify protection or enforcement of the Clean Water Act (CWA) for streams and wetlands. The agencies are launching a robust outreach effort that will extend more than 90 days, holding discussions around the country and gathering input needed to shape a final rule. The agencies claim that determining CWA protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006, and nearly every business and the general public, including farmers, have wanted clarity of how and to what waters the Clean Water Act pertains.
Many of the ag groups have concerns. On March 25th, Gina McCarthy, U.S. EPA Administrator, said, "The rule does not expand the Clean Water Act. I repeat, it does not protect any new types of water that has not been historically covered under the Clean Water Act. We know how vital water is to America's farmers and ranchers. Some in the agriculture community think that a new rule might mean expansion to all waters. This rule will not regulate groundwater or tile drainage systems. It will not increase regulations of ditches whether they are irrigation or drainage. It can be clear that this rule keeps intact existing CWA exemptions for agricultural activities, but it does more for farmers than that. It actually expands those exemptions." The rulemakers claim to be backed by peer-reviewed science, and those reviews are continuing. Forty years ago, two-thirds of America's lakes, rivers and coastal waters were unsafe for fishing and swimming. Because of the Clean Water Act, that number has been cut in half. However, one-third of the nation's waters still do not meet standards, and the EPA, USDA and Army Corp are shooting for cleaning up that one-third.
U.S. Senator David Vitter (R-LA.), a member of the Environment and Public Works Committee, said, "This rule may be one of the most significant private property grabs in U.S. history. Today's rule also shows EPA picking and choosing the science they use. Peer review of the Agency's connectivity report is far from complete, and yet they want to take another step toward outright permitting authority over virtually any wet area in the country, while at the same time providing a new tool for environmental groups to sue private property owners."
Click here for more information from EPA on the Waters of the United States (WOTUS) rule.
DATCP: If it's Not Labeled as a Pesticide, Don't Sell it as a Pesticide
Wisconsin pesticide authorities are reminding retailers: Unless propionic acid and similar products are labeled as pesticides, you are violating both federal and state law if you sell them as pesticides, or make pesticide claims for their use. The Bureau of Agrichemical Management in the Wisconsin Department of Agriculture, Trade and Consumer Protection has been receiving anecdotal reports of businesses making pesticide claims about these products when they were not registered and labeled as pesticides. This violates Wisconsin Statutes Chapter 94, Wisconsin Administrative Code ATCP 29, and the Federal Insecticide, Fungicide and Rodenticide Act, commonly known as FIFRA. Propionic acid and similar substances may be used as ingredients in animal feed or human food. In different formulations, they may act as pesticides. Propionic acid, for example, is commonly used as a hay preservative - a pesticide. The law does not prohibit farmers from buying feed-grade propionic acid and using it as a hay preservative. It does prohibit businesses from selling it as a preservative if it is labeled as a feed ingredient.
The problem is not in selling propionic acid formulated as a pesticide and labeled as such, with no changes to the manufacturer's packaging or labeling. The problem arises when a business makes pesticide claims for propionic acid that is formulated as a feed ingredient. Feed-grade propionic acid is not registered as a pesticide with U.S. EPA or with DATCP. More important, it does not have labeling to direct proper use and precautions. The formulation may not be effective as a preservative or may contain other components that are not compatible with use as a preservative.
The bottom line is that food and feed-grade products cannot be distributed for pest control unless they are also registered and labeled for that use, and meet EPA requirements for repackaging pesticides. Violators may be subject to federal and state administrative action such as holding orders or license suspension, or even court prosecution. Civil penalties for violating FIFRA can range up to $5,000. Businesses violating Wisconsin pesticide laws could also pay up to $5,000.
OSHA Requests $565 Million to Inspect Hazardous Workplaces
Worth noting in this request is that it includes a proposed amendment to appropriation language to allow OSHA to inspect businesses with 10 or fewer employees. The U.S. Department of Labor published its Fiscal Year 2015 (FY 2015) Budget, which shows that $11.8 billion in discretionary budget authority is being requested, along with 17,763 full-time equivalent employees (FTE). For OSHA in particular, a FY 2015 Budget of $565,010,000 and 2,265 FTE have been requested for the agency to inspect hazardous workplaces and foster employer compliance with safety and health regulations. In addition, the budget request includes two proposed amendments to its appropriation language:
  1. A request to increase the amount that OSHA may retain from training institute course tuition and fees from $200,000 to $499,000 per fiscal year; and
  2. A proposal to allow targeted inspections of small establishments that may have potential for catastrophic incidents (e.g., those with Process Safety Management (PSM) or the EPA's Risk Management Program (RMP) - covered processes).
The current appropriations language limits OSHA's ability to conduct safety and health inspections of small businesses (10 or fewer employees) in industry codes that have lower-than-average workplace injury and illness rates. Neither the number of workers in a company nor low injury and illness rates, however, is predictive of the potential for high-consequence catastrophic incidents, resulting in multiple casualties and extensive property damage that can damage whole communities.
DOL Revokes Controversial Family-Farming Guidance
Congress is concerned that OSHA may be taking regulatory actions against farming activities. In a letter, Assistant Secretary for Congressional and Intergovernmental Affairs, Brian V. Kennedy, addressed congressional concerns that OSHA may be taking regulatory actions against farming activities that are exempted from regulatory enforcement under the Occupational Safety and Health Act of 1976.
In the letter, Kennedy began by reviewing the steps OSHA has taken to educate owners of grain handling facilities on the safe work practices that can prevent workers from becoming entrapped in the grain. First, OSHA, in light of a dramatic increase in grain-related deaths in 2010, began focusing its resources on preventing grain entrapment fatalities through industry outreach, education, technical assistance and enforcement. Next, the agency sent a letter to approximately 13,000 grain facilities, describing safety measures and how to comply with OSHA's standard at 1910.272, Grain handling facilities. Finally, to ensure that inspectors understood the limitations on the agency's authority to conduct enforcement activities at small farming operations, OSHA issued a memorandum to regional administrators and State Plan designees on June 28, 2011.
Congressional members asserted that the guidance in the memo indicated that OSHA may be taking regulatory actions against farming activities that are exempted by Congress through appropriations language from regulatory enforcement under the Occupational Safety and Health Act of 1976. The appropriations language clearly prohibits OSHA activities at farming operations that employ 10 or fewer employees and that does not maintain a temporary labor camp.
According to Kennedy, to ensure that all OSHA inspectors clearly understand OSHA's policies and proper authority and to address the concerns expressed by Congress, the Department of Labor will issue new guidance after consulting with the U.S. Department of Agriculture and organizations representing farmers. Click here to review the entire letter.
2014 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.
ResponsibleAg Announced at Senate Hearing
Senate Hearing for ResponsibleAg
ARA and TFI announced plans on February 18th to create ResponsibleAg, an independent, not-for-profit organization designed to support fertilizer retailers' compliance with federal safety and security regulations. Wasting no time, Billy Pirkle, Senior Director of Environment, Health and Safety for Crop Production Services, was invited to testify on behalf of The Fertilizer Institute before the U.S. Senate Committee on Environment and Public Works (EPW) on March 6th. The hearing was titled "Preventing Potential Chemical Threats and Improving Safety: Oversight of the President's Executive Order on Improving Chemical Facility Safety and Security." Topics discussed at the hearing included the accident at the West Fertilizer facility in West, Texas, the recent chemical spill in the Elk River near Charleston, West Virginia, the use of Inherently Safer Technologies (IST) and the President's Executive Order 13650.
Billy used the forum to announce the launch of ResponsibleAg and answer questions on behalf of our industry. It is particularly noteworthy that Chairman Barbara Boxer (D-CA) voiced her strong support for ResponsibleAg and praised the industry for taking voluntary action. In addition, she offered her assistance in encouraging industry participation in such an important initiative. "I'm very pleased to see this," she said. "I do encourage all of these players to join, because at the end of the day, the costs to the industry are enormous. I think it's a smart thing to do," said Boxer. Our sincere thanks to Billy for sharing his expertise and time to testify on behalf of our industry. Billy represented industry in a positive light with his message outlining the voluntary efforts the ag industry is taking to demonstrate its commitment to safety and security. Click here for a copy of TFI's testimony and video of the hearing.
Retirement Wishes: Richard Gearheard
As March passed we congratulated Richard Gearheard, President of Agrium Retail, on his career of 41 years. Richard announced his retirement earlier this year after successfully leading the Agrium Retail organization for many years. Just as his work has obviously been long and satisfying, we wish him an equally long and satisfying retirement. Given his work ethic and love of the industry, we believe that he may still show up at work, even though he is retired. Congratulations Richard and best wishes for a healthy and fun retirement!
One Man's Junk....
In the coming months we will formally announce an exciting new project that will be another first-of-its-kind and benefit the industry. In the meantime we would ask that you contact us if you are removing any "well-worn" equipment from service around your retail facility. Since one man's junk is another man's treasure, we have need for a variety of "well-used" equipment such as a seed treater, seed bin, forklift, a wide range of minibulk tanks and bulk seed totes/hoppers. Of particular interest is any item such as a hand tool, ladder, extension cord, bench grinder or similar item required to be removed from service due to an audit or inspection. We will also need close to a thousand empty 4/1 and 2/2.5 gallon cases. Please contact Allen at 270-926-4600, Ext 201 or allen@asmark.org if you have an opportunity.
New Phone System: Direct Path to a Live Person
We are wrapping up the installation of a new phone system designed to reward callers that know the extension of the person they need. A complete list of Asmark Institute staff and their extensions can be found in the last article of this newsletter. Click here for a current list of staff from our website. Kendal will help any callers that don't know the extension of the person they need. The new system uses logic to route calls to the first available in a group such as driver files or training.
Tier 2 Fee Legislation Defeated in IL
An Illinois bill which proposed to establish fees as high as $450 per facility for companies who submit annual SARA Tier 2 reports was defeated according to K.J. Johnson, Illinois Fertilizer and Chemical Association's Director of Government & Industry Relations. He, along with other industry representatives, provided testimony at the committee outlining the reasons for opposition to the fees.
And Safety For All: Ensuring your facility has a game plan for when inspectors do not play by the rules
Recently, an association member presented an interesting - if not alarming - question to association staff. The member described a situation where an inspector with a federal agency failed to follow standard operating safety procedures regarding bin entry. Even after the inspector was notified of the safety rule, and was asked to comply, the facility could not gain compliance with the safety standard.
What is a facility to do in this situation?
As an industry, we are acutely aware of our legal, regulatory and moral duty to ensure the safety of all persons on-site, at all times. Clearly, we understand that our safety standards and procedures apply to our employees, on-site contract workers and visitors. We are made especially aware of this standard by the heightened scrutiny placed on our industry under OSHA's Local Emphasis Program.
However, unique circumstances exist during interactions when official state and federal inspection personnel are on-site. The normal flow of daily operations is interrupted, and Operations Managers and Safety Officers find themselves removed from their normal duties to locate and provide records, answer questions, and accompany inspectors around the facility. Through all of this, we can become preoccupied and not fully recognize our duty to ensure the safety of the inspection staff, or assume that they will automatically conduct themselves in a professional and safe manner.
So what happens in the rare circumstance when inspection personnel unnecessarily expose themselves to unsafe or hazardous situations in violation of our (and OSHA) safety standards? Are our hands tied so that the inspectors simply have free reign of our facilities?
In finding answers to these difficult - but vitally important - questions, Randy Stookey, Vice President and General Counsel for the Kansas Grain and Feed Association, spoke with the Acting Director of DOL/OSHA's Regional Office in Wichita, and received the following guidance on the proper procedure to handle such situations:
  1. Federal agencies are required to promulgate safety standard operating procedures (SOP) for their employees. (29 CFR, Part 1960.1(g)).
  2. When a federal inspector is on-site at a facility, that inspector is required to follow the agency's inspection SOPs and safety procedures.
  3. Federal inspectors are also required to comply with all OSHA industry workplace safety standards.
  4. If an inspector's activities are not consistent with OSHA workplace safety standards, then the facility may expose themselves to both private liability and regulatory enforcement action for any injuries caused by accidents related to that noncompliant, unsafe behavior.
  5. In order to protect the facility from liability and regulatory enforcement actions, it is advised that the facility's safety officer initially notify inspection personnel of its safety SOPs prior to the inspection, make a record of that notice and accompany the inspection personnel at all times while on-site.
  6. If the safety officer observes any unsafe activity by the inspection personnel, the safety officer should immediately notify the inspector of the safety SOP requirement, explain why the action is unsafe and in violation of the safety SOP, and provide the inspector with an alternative action in compliance with the safety SOP.
  7. If the inspection personnel refuses to comply with the safety SOP and continues the unsafe activity, the safety officer should request a brief delay in the inspection in order to consult with the inspection personnel's supervisor.
  8. The safety officer, or operations officer, should then immediately contact the inspection personnel's supervisor to find a resolution to the situation, being prepared to provide the inspection personnel's supervisor with the following information: the site location, the name of the inspector, the pertinent facts of the safety violation to include the safety standard that was/or would have been violated, the request that was made to the inspector to alter their activity and the inspector's response to that request.
  9. If the matter is resolved through contact with the area supervisor, then the safety officer should make an internal memorandum of record detailing:
    • the site location and a general description of the site
    • the name of the inspector(s)
    • the date of the incident (or incidents if this has happened on prior occasions)
    • a record of the safety briefing, if any, conducted prior to the inspection
    • the pertinent facts of the safety violation to include the standard that was/or would have been violated
    • the clear directive/request that was made to the inspector to stop the unsafe activity
    • the inspector's specific response to that directive
    • the fact that the inspector was provided with an alternative action to complete the inspection in a manner that was consistent with safety standards
    • the inspection personnel's response to the alternative action request
    • the name and contact information of the person that the safety officer or operations officer contacted in the inspector's chain of command following the inspector's refusal to follow the safety SOP and directive, and
    • any other information deemed relevant to the situation.
  10. Note: This is a vitally important step in protecting the elevator from future civil suit or regulatory enforcement actions.
  11. If the matter is not resolved through contacting the inspection personnel's supervisor, then the safety officer should contact their area OSHA office or KGFA for further assistance.
  12. When the safety officer contacts the area OSHA office or KGFA, he/she should be prepared to provide all of the information above, along with a brief explanation of the response received from the inspector's supervisor, and why that response did not resolve the situation.
  13. Remember that the more facts you can provide to OSHA the better OSHA will be equipped to assist the elevator in resolving the noncompliance.
Remember, most inspectors intend to do their job in a professional and safe manner. The best approach to resolving any issue with inspection personnel is to address the issue on the lowest (and most direct) level as possible. As always, your association staff is here to assist you whenever possible. This article was made possible by Randy Stookey, Vice President and General Counsel for the Kansas Grain and Feed Association (KGFA) and Kansas Agribusiness Retailers Association (KARA). We appreciate Randy allowing us to share this thought-provoking article with our members.
Ag Industry Receives Positive Editorials
Following the announcement of ResponsibleAg a number of news organizations published positive editorials on the industry's voluntary efforts to prevent another tragedy like happened in West, Texas. Click here to read the Waco Tribune article. In early March, Chris Jahn, President of TFI and Kathy Mathers, Vice President of Public Affairs for TFI, along with Daren Coppock, President of ARA, travelled to meet with the editorial board of the Dallas Morning News. During the meeting they detailed the steps the industry has taken in the wake of the West, Texas explosion and outlined plans for ResponsibleAg. Click here to read the Dallas Morning News editorial resulting from their visit.
ResponsibleAg Board of Directors Selected
The Fertilizer Institute (TFI) and Agricultural Retailers Association (ARA) recently announced the industry representatives to serve on the ResponsibleAg Board. Four representatives were carefully selected by TFI from a cross section representing the whole fertilizer supply chain. They are as follows:
  • Alicia Duke, Director, Health and Safety, Simplot
  • Justin Gough, Director, Agricultural Products, LSB/El Dorado Chemical Company
  • Pete Mutschler, Environmental and Safety Director, CHS Inc.
  • Rosemary O'Brien, Vice President, Public Affairs, CF Industries, Inc.
Five representatives were selected by ARA and are as follows:
  • Dave Ito, Manager, Human Resources & Regulatory Affairs, Lyman/Tremont Group
  • Tim McArdle, Executive Vice President & COO, Brandt Consolidated, Inc.
  • Billy Pirkle, Sr. Director, Environment, Health & Safety, Crop Production Services
  • Scott Rawlins, Director, Regulatory & Governmental Affairs, Wilbur-Ellis Company
  • Rod Wells, Manager, Plant Food Division, Growmark
West Plans Event To Observe One Year Memorial of Fertilizer Plant Explosion
The City of West, TX plans to create an event for the anniversary of the fertilizer plant explosion. West Mayor Tommy Muska appointed nine people to plan West's official event. The event will be held on Thursday, April 17, 2014 at 7:30 p.m. at the West Fair and Rodeo Grounds. The event is intended for the West community and those who were directly affected by the events of the evening of April 17, 2013.
The committee has adopted the name, "West 4/17 Forever Forward," marking the date of April 17, 2013 as a day that will forever be remembered in West, and "forward," describing the optimism and momentum toward the community's future.
National Registry of Certified Medical Examiners Coming in May
Effective May 21, 2014, all DOT medical physicals for truck drivers must be performed by a person listed on the National Registry. As long as an exam taken before that date was performed in accordance with Section 391.43, by someone defined as a medical examiner based on the prior regulations, it is valid through its expiration date. A CDL holder is still responsible for self-certifying and submitting his/her medical certificate to the state of licensing in order to operate a CDL vehicle in non-excepted, interstate commerce. The confusion lies in the fact that certified medical examiners are required to submit a monthly report to the Federal Motor Carrier Safety Administration (FMCSA) on the exams performed. This information is not shared with state licensing offices. J.J. Keller & Associates has informed us they are unaware of any pending changes to §391.41, §391.43, or the Medical Advisory Criteria to correspond with the implementation date of the National Registry. To determine if a physician is on the list, certified medical examiners are listed on the FMCSA website. Physicians can also register to become certified on the same site.
FMCSA Amends GCWR Definition
DOT recently announced the final change to the definition of Gross Combination Weight Rating (GCWR) for single unit trucks (not truck tractors) when they are towing a trailer and the GCWR is not included on the vehicle manufacturer's label. The final rule is effective April 18, 2014. The new definition for both CDL requirements in Section 383 and Federal Motor Carrier Safety Regulations in Section 390 will read:
Gross combination weight rating (GCWR) is the greater of:
  1. A value specified by the manufacturer of the power unit, if such value is displayed on the Federal Motor Vehicle Safety Standard certification label required by the National Highway Traffic Safety Administration, or
  2. The sum of the gross vehicle weight ratings (GVWRs) or the gross vehicle weights (GVWs) of the power unit and the towed unit(s), or any combination thereof, that produces the highest value. Exception: The GCWR of the power unit will not be used to define a commercial motor vehicle when the power unit is not towing another vehicle.
DOT Proposes Use of Electronic Logbooks
DOT has announced a proposal to require interstate commercial truck and bus companies to use Electronic Logging Devices (ELDs) in their vehicles to improve compliance with the safety rules that govern the number of hours a driver can work. The proposed rulemaking is hoped to significantly reduce the paperwork burden associated with hours-of-service recordkeeping for interstate truck and bus drivers - the largest in the federal government following tax-related filings - and improve the quality of logbook data. The agency believes the proposed rule will ultimately reduce hours-of-service violations by making it more difficult for drivers to misrepresent their time on logbooks and avoid detection by DOT and law enforcement personnel. Analysis shows it will also help reduce crashes by fatigued drivers and prevent approximately 20 fatalities and 434 injuries each year for an annual safety benefit of $394.8 million.
FMCSA Deactivating DOT Numbers if URS Not Renewed
The Federal Motor Carrier Safety Administration (FMCSA) said it has started to deactivate the DOT registration numbers of trucking companies overdue for updating their Unified Registration System (URS) data, which is due every other year. FMCSA sent out letters and e-mails to motor carriers in November 2013, warning them of the need to file the registration updates. URS is a company registration program (not vehicle registration) that applies to all interstate motor carriers (private and for-hire motor carriers of passengers and freight), freight forwarders, brokers, HM Safety Permit applicants/holders, and cargo tank manufacturing and repair facilities under FMCSA jurisdiction. The FMCSA notice said, "The agency will begin deactivating USDOT numbers starting in March 2014 for motor carriers due to update in January 2014 who failed to complete their biennial update." Every month the agency will proceed with purging carriers two months beyond deadline. Fines for failure to comply are $1,000 a day up to a maximum of $10,000. FMCSA said the DOT numbers themselves tell a company when to file. The last digit - 1 to 9 and then 0 - tells the month to register, January to October. The next-to-last digit indicates the year: odd numbers in odd-numbered years and evens in evens. URS is a separate program from Unified Carrier Registration, a system that collects carrier fees and distributes them to states.
"Clearinghouse" Proposal Officially Appears in Federal Register
A proposed rule on a Commercial Driver's License Drug and Alcohol Clearinghouse, authored by DOT, appeared, in the Federal Register on February 20, 2014. The proposal would establish a Clearinghouse, a database under DOT's administration, that will contain controlled substances (drug) and alcohol test result information for the holders of commercial driver's licenses (CDLs).
The proposed rule would require DOT-regulated motor carrier employers, Medical Review Officers (MROs), Substance Abuse Professionals (SAPs), and consortia/third party administrators (C/TPAs) supporting DOT testing programs to report specific information, including:
  • verified positive, adulterated, and substituted drug test results,
  • positive alcohol test results,
  • test refusals,
  • negative return-to-duty test results, and
  • information on follow-up testing.
The proposed rule would also require employers to report actual knowledge of traffic citations for driving a commercial motor vehicle (CMV) while under the influence (DUI) of alcohol or drugs.
The proposed rule would establish the terms of access to the database, including the conditions under which information would be submitted, accessed, maintained, updated, removed and released to prospective employers, current employers and other authorized entities. Finally, it would require laboratories that provide DOT-regulated motor carrier employers with DOT drug testing services to report, annual, summary information about their testing activities. This rule is mandated by Section 32402 of the Moving Ahead for Progress in the 21st Century Act.
You may submit comments by April 21, 2014, identified by docket number FMCSA-2010-0031 or RIN 2126-AB18, by any of the following methods: Federal eRulemaking Portal: http://www.regulations.gov. Fax: (202) 493-2251. Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. The telephone number is (202) 366-9329.
EPA and Army Corps Announce Water Protection Rule
U.S. EPA and the Army Corps of Engineers recently released a jointly-proposed new rule to clarify protection or enforcement of the Clean Water Act (CWA) for streams and wetlands. The agencies are launching a robust outreach effort that will extend more than 90 days, holding discussions around the country and gathering input needed to shape a final rule. The agencies claim that determining CWA protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006, and nearly every business and the general public, including farmers, have wanted clarity of how and to what waters the Clean Water Act pertains.
Many of the ag groups have concerns. On March 25th, Gina McCarthy, U.S. EPA Administrator, said, "The rule does not expand the Clean Water Act. I repeat, it does not protect any new types of water that has not been historically covered under the Clean Water Act. We know how vital water is to America's farmers and ranchers. Some in the agriculture community think that a new rule might mean expansion to all waters. This rule will not regulate groundwater or tile drainage systems. It will not increase regulations of ditches whether they are irrigation or drainage. It can be clear that this rule keeps intact existing CWA exemptions for agricultural activities, but it does more for farmers than that. It actually expands those exemptions." The rulemakers claim to be backed by peer-reviewed science, and those reviews are continuing. Forty years ago, two-thirds of America's lakes, rivers and coastal waters were unsafe for fishing and swimming. Because of the Clean Water Act, that number has been cut in half. However, one-third of the nation's waters still do not meet standards, and the EPA, USDA and Army Corp are shooting for cleaning up that one-third.
U.S. Senator David Vitter (R-LA.), a member of the Environment and Public Works Committee, said, "This rule may be one of the most significant private property grabs in U.S. history. Today's rule also shows EPA picking and choosing the science they use. Peer review of the Agency's connectivity report is far from complete, and yet they want to take another step toward outright permitting authority over virtually any wet area in the country, while at the same time providing a new tool for environmental groups to sue private property owners."
Click here for more information from EPA on the Waters of the United States (WOTUS) rule.
DATCP: If it's Not Labeled as a Pesticide, Don't Sell it as a Pesticide
Wisconsin pesticide authorities are reminding retailers: Unless propionic acid and similar products are labeled as pesticides, you are violating both federal and state law if you sell them as pesticides, or make pesticide claims for their use. The Bureau of Agrichemical Management in the Wisconsin Department of Agriculture, Trade and Consumer Protection has been receiving anecdotal reports of businesses making pesticide claims about these products when they were not registered and labeled as pesticides. This violates Wisconsin Statutes Chapter 94, Wisconsin Administrative Code ATCP 29, and the Federal Insecticide, Fungicide and Rodenticide Act, commonly known as FIFRA. Propionic acid and similar substances may be used as ingredients in animal feed or human food. In different formulations, they may act as pesticides. Propionic acid, for example, is commonly used as a hay preservative - a pesticide. The law does not prohibit farmers from buying feed-grade propionic acid and using it as a hay preservative. It does prohibit businesses from selling it as a preservative if it is labeled as a feed ingredient.
The problem is not in selling propionic acid formulated as a pesticide and labeled as such, with no changes to the manufacturer's packaging or labeling. The problem arises when a business makes pesticide claims for propionic acid that is formulated as a feed ingredient. Feed-grade propionic acid is not registered as a pesticide with U.S. EPA or with DATCP. More important, it does not have labeling to direct proper use and precautions. The formulation may not be effective as a preservative or may contain other components that are not compatible with use as a preservative.
The bottom line is that food and feed-grade products cannot be distributed for pest control unless they are also registered and labeled for that use, and meet EPA requirements for repackaging pesticides. Violators may be subject to federal and state administrative action such as holding orders or license suspension, or even court prosecution. Civil penalties for violating FIFRA can range up to $5,000. Businesses violating Wisconsin pesticide laws could also pay up to $5,000.
OSHA Requests $565 Million to Inspect Hazardous Workplaces
Worth noting in this request is that it includes a proposed amendment to appropriation language to allow OSHA to inspect businesses with 10 or fewer employees. The U.S. Department of Labor published its Fiscal Year 2015 (FY 2015) Budget, which shows that $11.8 billion in discretionary budget authority is being requested, along with 17,763 full-time equivalent employees (FTE). For OSHA in particular, a FY 2015 Budget of $565,010,000 and 2,265 FTE have been requested for the agency to inspect hazardous workplaces and foster employer compliance with safety and health regulations. In addition, the budget request includes two proposed amendments to its appropriation language:
  1. A request to increase the amount that OSHA may retain from training institute course tuition and fees from $200,000 to $499,000 per fiscal year; and
  2. A proposal to allow targeted inspections of small establishments that may have potential for catastrophic incidents (e.g., those with Process Safety Management (PSM) or the EPA's Risk Management Program (RMP) - covered processes).
The current appropriations language limits OSHA's ability to conduct safety and health inspections of small businesses (10 or fewer employees) in industry codes that have lower-than-average workplace injury and illness rates. Neither the number of workers in a company nor low injury and illness rates, however, is predictive of the potential for high-consequence catastrophic incidents, resulting in multiple casualties and extensive property damage that can damage whole communities.
DOL Revokes Controversial Family-Farming Guidance
Congress is concerned that OSHA may be taking regulatory actions against farming activities. In a letter, Assistant Secretary for Congressional and Intergovernmental Affairs, Brian V. Kennedy, addressed congressional concerns that OSHA may be taking regulatory actions against farming activities that are exempted from regulatory enforcement under the Occupational Safety and Health Act of 1976.
In the letter, Kennedy began by reviewing the steps OSHA has taken to educate owners of grain handling facilities on the safe work practices that can prevent workers from becoming entrapped in the grain. First, OSHA, in light of a dramatic increase in grain-related deaths in 2010, began focusing its resources on preventing grain entrapment fatalities through industry outreach, education, technical assistance and enforcement. Next, the agency sent a letter to approximately 13,000 grain facilities, describing safety measures and how to comply with OSHA's standard at 1910.272, Grain handling facilities. Finally, to ensure that inspectors understood the limitations on the agency's authority to conduct enforcement activities at small farming operations, OSHA issued a memorandum to regional administrators and State Plan designees on June 28, 2011.
Congressional members asserted that the guidance in the memo indicated that OSHA may be taking regulatory actions against farming activities that are exempted by Congress through appropriations language from regulatory enforcement under the Occupational Safety and Health Act of 1976. The appropriations language clearly prohibits OSHA activities at farming operations that employ 10 or fewer employees and that does not maintain a temporary labor camp.
According to Kennedy, to ensure that all OSHA inspectors clearly understand OSHA's policies and proper authority and to address the concerns expressed by Congress, the Department of Labor will issue new guidance after consulting with the U.S. Department of Agriculture and organizations representing farmers. Click here to review the entire letter.
2014 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.