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Newsletter
Volume 141
August 3, 2015
OSHA Rescinds the "Retailer Exemption"
Process safety management (PSM) has been a popular topic these last few days, especially since OSHA's announcement on July 22nd rescinding the retail exemption. Bypassing the rulemaking process, which involves the opportunity for public comments, OSHA changed the rules. PSM first hit mainstream radar back around 2000 when OSHA interpreted a retail facility to be one that derived more than 50 percent of its income from direct sales of highly hazardous chemicals to the end user, otherwise known as "the 50 percent test." For most ammonia facilities this was welcome relief at the time from a rule originally developed for manufacturing facilities. PSM popped back up on the radar screen as a result of the West Fertilizer explosion and the President's August 1, 2013, Executive Order 13650, Improving Chemical Facility Safety and Security.
"There's an old saying that if you think safety is expensive, try an accident. Accidents cost a lot of money. And, not only in damage to plant and in claims for injury, but also in the loss of the company's reputation." - Dr. Trevor Kletz, recognized as the father of process safety. Don't wait for an accident to happen at your facility, register with ResponsibleAg and proactively work to comply with the Federal rules, many of which have been in place since the 70's.
Most agricultural retailers are classified under NAICS code 424910, which is defined as "Farm Supplies Merchant Wholesale," formerly SIC code 5191. As a result of OSHA rescinding the retail exemption, agricultural retailers that store and handle a "highly hazardous chemical" such as anhydrous ammonia would be subject to the requirements of PSM.
OSHA has issued an enforcement policy offering to provide compliance assistance to affected facilities and delay enforcement for six months or until January 22, 2016. Industry partners are sorting through the effect this will have on our industry and are weighing their options on how best to respond to OSHA. For now, here is what we know:
What products are involved? Anhydrous ammonia, aqua ammonia, nitric acid among others are on the list of regulated chemicals. We are awaiting word as to what degree propane will be affected.
What's the big deal? Loss of the retail exemption means the typical anhydrous ammonia facility must now comply with OSHA's PSM Standard. And, because the facility is now subject to PSM, it triggers EPA's requirement to prepare and submit a Program 3 Risk Management Plan.
What's the difference between a Program 2 and 3 RMP? In a word - LOTS! Flow drawings, Process & Instrumentation Diagrams (P&ID), Management of Change program to mention a few, plus stepped-up requirements within Process Hazard Analysis, Compliance Audit and Mechanical Integrity. An engineer will not be required for the typical retail facility but some do seek out their help.
Will this require me to upgrade my equipment? Probably, some degree of upgrades will be required at almost every facility based on coming into compliance with PSM and based on the recent RAGAGEP memo. OSHA's memorandum provides guidance on the enforcement of PSM's recognized and generally accepted good engineering practices (RAGAGEP) requirements, including how to interpret "shall" and "should" language in published codes, standards, published technical reports, recommended practices (RP) or similar documents.
What's the Asmark Institute's plan of action? While industry is contemplating their options, we have already proceeded to upgrade our tools and systematic approach to help our clients meet the January 2016 deadline. We will launch the new suite of tools by October 15th and incorporate the additional PSM and RMP Program 3 upgrade into our annual compliance visit process that occurs between October 15th and December 31st of each year. We worked with EPA two years ago to build the Program 3 RMP materials, so luckily that is behind us. These new requirements will be added to the Lighthouse program and covered under the retainer much as we have with new rules in the past.
Can this be done within 6 months? We were given 3 years by EPA to prepare the first RMP. PSM is substantially bigger, will have to be made to "fit" our small facilities with only a few people and completely new to everyone in the retail industry. Becoming compliant in a quality manner with a reasonable understanding will take much longer than six months.
Are there any other regulatory requirements on the horizon? We anticipate EPA will also respond to the President's Executive Order soon with a few new hurdles of their own, such as adding ammonium nitrate and propane to the list of RMP regulated substances and possibly adding requirements to the RMP for new data elements and accident prevention features.
What can I do to be prepared? Read everything available on Process Safety Management and learn all you can in the next month. PSM is not like a SARA Tier II Report that once a year a document is updated and placed in a file. At some facilities, expect there to be an activity that must be performed and documented on a daily basis.
Are you responsible for more than one facility? The Asmark Institute contracted for professional training for our own staff that will help handle PSM. We offered to share this with our clients and ultimately wound up contracting for a number of two-day training courses. Click here if you are interested in attending one of these courses. Space is extremely limited.
Best advice? Start now! This will be unlike any rule, regulation or standard we have come to know. The effects won't be known until the OSHA inspector visits.
Agricultural retailers have operated in a safe and sound manner for several decades and have voluntarily initiated proactive programs such as ResponsibleAg to assist fertilizer retailers achieve and maintain compliance with federal regulations. OSHA's action on July 22nd blindsided the recently formed ag-alliance group and the entire industry. While we can't predict how this will turn out, we do know that we must get started in order to have any hope whatsoever of making the January deadline. We recommend our clients do the same. Stay tuned for more information as it becomes available.
ResponsibleAg Registration: It's time to register!
The explosion of the West, Texas retail facility in April 2013 marked a low point in the public and regulatory agencies perception of the fertilizer industry. The industry was criticized for not having an organized effort to assist retail dealers in understanding and complying with existing federal regulations. Help is in place now. We highly recommend you register and participate in ResponsibleAg. For more information and to register go to: www.responsibleag.org
Become a ResponsibleAg Auditor or Attend to Learn More....
More than 90 people have already participated in the training with more than 60 choosing to become credentialed by ResponsibleAg. We are seeing several organizations credential one or more of their employees to perform their own audits. Many others are signing up for the training to become contract auditors or to learn firsthand about ResponsibleAg - they want to see how it works - so they will be ready for their audit. To become a ResponsibleAg auditor the first step is to attend the training. Registration is open and the next class will be offered on September 15-18th. Click here to register.
2015 National Safety School - Register Today!
The 37th annual National Agronomic, Environmental, Health & Safety School will be held on August 25 & 26, 2015 in Bloomington, Illinois at the Asmark Institute Agricenter. An outstanding lineup of national speakers have been confirmed to present and you won't want to miss it. This year's keynote address will be given by Andrew Moore, Executive Director of the National Agricultural Aviation Association. Other speakers include David Wulf with DHS on security issues in agriculture, Ford B. West with an update on ResponsibleAg followed by a panel discussion, Thomas Bray with J.J. Keller & Associates on the DOT changes as result of the new medical/CDL merge, Brian Bothast with OSHA on "Welcome to Process Safety Management," Kim Basham on the evaluation and selection of repair methods for concrete containment areas, Dr. Fred Whitford and other greats will be on hand. Click here for more information and to register.
While in Bloomington that week, we recommend you stay an extra day to attend the Midwest AG Industries Expo (MAGIE) on August 26 & 27, 2015. It's truly one of the finest displays of "ride and buy" shows in the United States. Click here for more information on MAGIE and to register.
Founder of Miles Farm Supply Passes
We were saddened to hear that Mr. William S. Miles, 94, of Owensboro, KY died Tuesday, July 21, 2015. Born on August 27, 1920 in Owensboro, he was a farmer and co-owner of Miles Farm Supply. Father of Billy Joe Miles, Mr. Miles had two children, five grandchildren, eight great grandchildren and three great great grandchildren. Mr. Miles was a fine farmer, businessman and person that exuded all the best qualities associated with farming. Our thoughts and prayers go out to Billy Joe, Debra and the entire Miles family for their loss.
ResponsibleAg Helps Prevent Violations Like This
In a settlement agreement with EPA Region 7 filed today, a national company agreed to pay a $67,404 civil penalty to settle alleged violations of the Clean Air Act at its fertilizer facilities located in Kansas. The company is also required to spend an additional $113,121 on emergency response equipment to complete a Supplemental Environmental Project, benefitting the local Fire Department. EPA inspections revealed the company exceeded the threshold quantity of anhydrous ammonia in processes at each of the three facilities. This requires each facility to file a Risk Management Plan with EPA and implement a risk management program. "Companies have a responsibility to their employees, and the surrounding communities, to ensure they are using the best safety practices, and adhering to all regulations, when working with potentially dangerous chemicals," said EPA Region 7 Acting Administrator Mark Hague. "The Chemical Accident Prevention regulations exist to help ensure our communities are healthy, and that companies are doing all they can to work safely." By agreeing to the settlement, the company has certified that it is in compliance with the Clean Air Act and all of its requirements.
DOT Corrects Medical Exam and Recordkeeping Language
DOT recently published corrections to the Medical Examiner's Certification rule that appeared in the Federal Register on April 23, 2015 (80 FR 22790). Among the corrections was clarification on the implementation date for use of the revised medical examination report form and medical examiner's certificates. According to the revised text, the existing medical forms must be used until December 22, 2015, after which only the new versions of the forms will be accepted by DOT. The modified rule is effective June 22, 2015.
In the rule published in April, DOT amended the Federal Motor Carrier Safety Regulations (FMCSRs) to require certified medical examiners (MEs) performing physical examinations of commercial motor vehicle (CMV) drivers to use a newly developed Medical Examination Report (MER) Form, MCSA-5875, in place of the current MER Form and to use Form MCSA-5876 for the Medical Examiner's Certificate (MEC). Additionally, MEs must report results of all CMV drivers' physical examinations performed (including the results of examinations where the driver was found not to be qualified) to DOT by midnight (local time) of the next calendar day following the examination. That final rule was a follow-on rule to the Medical Certification Requirements as Part of the CDL rule final rule, published on December 1, 2008, and the National Registry of Certified Medical Examiners final rule, published on April 20, 2012.
DOT Doesn't Authorize "recreational" or "medical" Use of Marijuana
Recently, some states have passed initiatives to permit use of marijuana for so-called "recreational" purposes, and some states have enacted laws authorizing the use of "medical marijuana." The US DOT, Office of Drug & Alcohol Policy & Compliance, has issued notices that make it perfectly clear that the state initiatives or laws will have no bearing on the Department of Transportation's regulated drug testing program. The DOT's Drug and Alcohol Testing Regulation does not authorize the use of Schedule I drugs, including marijuana, for any reason. Therefore, Medical Review Officers (MROs) will not verify a drug test as negative based upon learning that the employee used either "recreational marijuana" or "medical marijuana." It is important to note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety-sensitive employee subject to drug testing under the DOTs drug testing regulations to use marijuana.
Medical Review Board to Meet Regarding Changes to Diabetes Standard
DOT is announcing a meeting of its Medical Review Board (MRB). The MRB will identify factors the agency should consider with regard to regulatory actions concerning Type I diabetes and vision standards for interstate commercial motor vehicle (CMV) drivers. This follows the agency's issuance of a Notice of Proposed Rulemaking on May 4, 2015, that would permit drivers with stable, well-controlled insulin-treated diabetes mellitus (ITDM) to be qualified to operate CMVs in interstate commerce. The MRB discussions would precede the agency's consideration of a rulemaking concerning the vision standard.
Oregon Adopts Modified Version of Federal Injury Reporting Change
Oregon OSHA recently adopted Federal OSHA's changes to the injury/illness reporting requirements.
While the rule is essentially the same as Federal OSHA's, Oregon did clear up confusion about when to report amputations versus avulsions. In Oregon OSHA's version of the rule, employers are required to report amputations and avulsions that include bone or cartilage loss. Federal OSHA does not require reporting of avulsions.
DOL Works to "weed out" Misclassified Independent Contractors
On July 15th, the Wage and Hour Division of the U.S. Department of Labor issued Administrator's Interpretation 2015-1: The Application of the Fair Labor Standards Act's "Suffer or Permit" Standard in the Identification of Employees Who Are Misclassified as Independent Contractors. It states the DOL's unequivocal opinion that "most workers are employees," under the FLSA. The "ultimate inquiry," according to the DOL, is "whether the worker is economically dependent on the employer [and, hence, an employee] or truly in business for him or herself [and, hence, an independent contractor]."
USDOT Numbers: The Who, What, Why, Where, and When
This article is made possible by J.J. Keller & Associates, a valued partner of the Asmark Institute for over 24 years. Our thanks to J.J. Keller for their support over the years and for the use of this article.
We are often asked, "Do I need a USDOT number?" If the vehicle meets the definition of a commercial motor vehicle (CMV) in §390.5, most of the Federal Motor Carrier Safety Regulations (FMCSR) apply. This includes the registration requirements of §390.19 and marking requirements of §390.21.Compliance is often a matter of having a good and accurate story to tell using the tried and true "Five W's" - who, what, why, where, and when.
Who:
The Federal Motor Carrier Safety Administration (FMCSA) has a FAQ answering the question "Who needs to get a USDOT number?" In general, a USDOT Number is required if you are operating in interstate commerce and:
  • You have vehicles that are over 10,000 lbs.
  • You transport between 9 and 15 passengers (including the driver) for compensation
  • You transport 16 or more passengers
  • You haul hazardous materials
Using the above guidance, the FMCSA requires carriers that are interstate and meet the operation criteria to have a USDOT number. And then, you may ask, what about intrastate carriers? If the vehicle is used in intrastate movements only, then the rules of the state apply. However, 33 states also require a USDOT number for their intrastate carriers and CMVs.
Each corporate identity should have its own USDOT number. A corporate identity is usually defined by a Federal Employer Identification Number (FEIN) issued by the Internal Revenue Service (IRS). This means that subsidiaries or "sister" corporations cannot share a number. On the other hand, divisions within a corporation falling under the FEIN of the parent company should all use the parent company's USDOT number. Individuals use their Social Security Number.
What:
The USDOT number is the government-supplied carrier numerical identification and is an indication that the carrier has registered with the FMCSA as required by §390.19. Since numbers are much less subjective than names, letters, and symbols, the number is used as the primary reference for all of the DOT databases. The number is applied for by submitting an MCS-150.
Any vehicle that is subject to the FMCSRs needs to display the USDOT number. This is true even if the vehicle is only sometimes a CMV, such as a pick-up truck with a trailer that, in combination, is 10,001 pounds or more (rated or actual) involved in interstate commerce.
Why:
The FMCSA is responsible for the safe operation of commercial vehicles on the nation's interstate and designated highways. The USDOT number provides a method of identifying which vehicles are in scope of their mission and provides a standard means of archiving safety history discovered through roadside inspections, crash investigations, and compliance reviews.
Where:
The display, or marking, requirements for CMVs are found in §390.21. On both sides of the vehicle, the marking must display:
  • The legal name or single trade name of the company operating the vehicle, and
  • The motor carrier identification number, which is issued by the FMCSA, preceded by the letters "USDOT."
If there is more than one name on the vehicle, the above must be preceded by "Operated by."
Other points:
  • Letters to be in "sharp" contrast to the background
  • Letters to be readily legible, during daylight hours, from a distance of 50 feet
When:
In addition to the initial registration, it is important to know that the registration process is not a "one and done" system. The MCS-150 contains 30 unique questions, many of which have subsections. The FMCSA understands that business models change and companies can grow or shrink. The FMCSA requires biennial (every other year) updates based on the USDOT number. The last digit indicates the assigned month to update and the second to last signifies whether the update needs to be done in an even or odd year.
Some of the information can affect the formulas used to compile Compliance Safety Accountability (CSA) scores for the Unsafe Driving and Crash Indicator BASICs (Behavioral Analysis and Safety Improvement Categories). For this reason, it may be advantageous to not wait until the next scheduled update. The FMCSA allows updates at any time; however, the biennial update is still expected.
Using the Five W's of who, what, why, where, and when, a carrier can keep its story straight and clean to avoid compliance headaches. This is true not only for USDOT number compliance, but also to ensure effective processes and procedures.
Most Quoteworthy: "For a long time, people were saying that most accidents were due to human error and this is true in a sense but it's not very helpful. It's a bit like saying that falls are due to gravity." - Dr. Trevor Kletz, recognized as the father of process safety, he was a prolific British author on the topic of chemical engineering safety. He is credited with introducing the concept of inherent safety and was a major promoter of Hazop.
2015 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.
OSHA Rescinds the "Retailer Exemption"
Process safety management (PSM) has been a popular topic these last few days, especially since OSHA's announcement on July 22nd rescinding the retail exemption. Bypassing the rulemaking process, which involves the opportunity for public comments, OSHA changed the rules. PSM first hit mainstream radar back around 2000 when OSHA interpreted a retail facility to be one that derived more than 50 percent of its income from direct sales of highly hazardous chemicals to the end user, otherwise known as "the 50 percent test." For most ammonia facilities this was welcome relief at the time from a rule originally developed for manufacturing facilities. PSM popped back up on the radar screen as a result of the West Fertilizer explosion and the President's August 1, 2013, Executive Order 13650, Improving Chemical Facility Safety and Security.
"There's an old saying that if you think safety is expensive, try an accident. Accidents cost a lot of money. And, not only in damage to plant and in claims for injury, but also in the loss of the company's reputation." - Dr. Trevor Kletz, recognized as the father of process safety. Don't wait for an accident to happen at your facility, register with ResponsibleAg and proactively work to comply with the Federal rules, many of which have been in place since the 70's.
Most agricultural retailers are classified under NAICS code 424910, which is defined as "Farm Supplies Merchant Wholesale," formerly SIC code 5191. As a result of OSHA rescinding the retail exemption, agricultural retailers that store and handle a "highly hazardous chemical" such as anhydrous ammonia would be subject to the requirements of PSM.
OSHA has issued an enforcement policy offering to provide compliance assistance to affected facilities and delay enforcement for six months or until January 22, 2016. Industry partners are sorting through the effect this will have on our industry and are weighing their options on how best to respond to OSHA. For now, here is what we know:
What products are involved? Anhydrous ammonia, aqua ammonia, nitric acid among others are on the list of regulated chemicals. We are awaiting word as to what degree propane will be affected.
What's the big deal? Loss of the retail exemption means the typical anhydrous ammonia facility must now comply with OSHA's PSM Standard. And, because the facility is now subject to PSM, it triggers EPA's requirement to prepare and submit a Program 3 Risk Management Plan.
What's the difference between a Program 2 and 3 RMP? In a word - LOTS! Flow drawings, Process & Instrumentation Diagrams (P&ID), Management of Change program to mention a few, plus stepped-up requirements within Process Hazard Analysis, Compliance Audit and Mechanical Integrity. An engineer will not be required for the typical retail facility but some do seek out their help.
Will this require me to upgrade my equipment? Probably, some degree of upgrades will be required at almost every facility based on coming into compliance with PSM and based on the recent RAGAGEP memo. OSHA's memorandum provides guidance on the enforcement of PSM's recognized and generally accepted good engineering practices (RAGAGEP) requirements, including how to interpret "shall" and "should" language in published codes, standards, published technical reports, recommended practices (RP) or similar documents.
What's the Asmark Institute's plan of action? While industry is contemplating their options, we have already proceeded to upgrade our tools and systematic approach to help our clients meet the January 2016 deadline. We will launch the new suite of tools by October 15th and incorporate the additional PSM and RMP Program 3 upgrade into our annual compliance visit process that occurs between October 15th and December 31st of each year. We worked with EPA two years ago to build the Program 3 RMP materials, so luckily that is behind us. These new requirements will be added to the Lighthouse program and covered under the retainer much as we have with new rules in the past.
Can this be done within 6 months? We were given 3 years by EPA to prepare the first RMP. PSM is substantially bigger, will have to be made to "fit" our small facilities with only a few people and completely new to everyone in the retail industry. Becoming compliant in a quality manner with a reasonable understanding will take much longer than six months.
Are there any other regulatory requirements on the horizon? We anticipate EPA will also respond to the President's Executive Order soon with a few new hurdles of their own, such as adding ammonium nitrate and propane to the list of RMP regulated substances and possibly adding requirements to the RMP for new data elements and accident prevention features.
What can I do to be prepared? Read everything available on Process Safety Management and learn all you can in the next month. PSM is not like a SARA Tier II Report that once a year a document is updated and placed in a file. At some facilities, expect there to be an activity that must be performed and documented on a daily basis.
Are you responsible for more than one facility? The Asmark Institute contracted for professional training for our own staff that will help handle PSM. We offered to share this with our clients and ultimately wound up contracting for a number of two-day training courses. Click here if you are interested in attending one of these courses. Space is extremely limited.
Best advice? Start now! This will be unlike any rule, regulation or standard we have come to know. The effects won't be known until the OSHA inspector visits.
Agricultural retailers have operated in a safe and sound manner for several decades and have voluntarily initiated proactive programs such as ResponsibleAg to assist fertilizer retailers achieve and maintain compliance with federal regulations. OSHA's action on July 22nd blindsided the recently formed ag-alliance group and the entire industry. While we can't predict how this will turn out, we do know that we must get started in order to have any hope whatsoever of making the January deadline. We recommend our clients do the same. Stay tuned for more information as it becomes available.
ResponsibleAg Registration: It's time to register!
The explosion of the West, Texas retail facility in April 2013 marked a low point in the public and regulatory agencies perception of the fertilizer industry. The industry was criticized for not having an organized effort to assist retail dealers in understanding and complying with existing federal regulations. Help is in place now. We highly recommend you register and participate in ResponsibleAg. For more information and to register go to: www.responsibleag.org
Become a ResponsibleAg Auditor or Attend to Learn More....
More than 90 people have already participated in the training with more than 60 choosing to become credentialed by ResponsibleAg. We are seeing several organizations credential one or more of their employees to perform their own audits. Many others are signing up for the training to become contract auditors or to learn firsthand about ResponsibleAg - they want to see how it works - so they will be ready for their audit. To become a ResponsibleAg auditor the first step is to attend the training. Registration is open and the next class will be offered on September 15-18th. Click here to register.
2015 National Safety School - Register Today!
The 37th annual National Agronomic, Environmental, Health & Safety School will be held on August 25 & 26, 2015 in Bloomington, Illinois at the Asmark Institute Agricenter. An outstanding lineup of national speakers have been confirmed to present and you won't want to miss it. This year's keynote address will be given by Andrew Moore, Executive Director of the National Agricultural Aviation Association. Other speakers include David Wulf with DHS on security issues in agriculture, Ford B. West with an update on ResponsibleAg followed by a panel discussion, Thomas Bray with J.J. Keller & Associates on the DOT changes as result of the new medical/CDL merge, Brian Bothast with OSHA on "Welcome to Process Safety Management," Kim Basham on the evaluation and selection of repair methods for concrete containment areas, Dr. Fred Whitford and other greats will be on hand. Click here for more information and to register.
While in Bloomington that week, we recommend you stay an extra day to attend the Midwest AG Industries Expo (MAGIE) on August 26 & 27, 2015. It's truly one of the finest displays of "ride and buy" shows in the United States. Click here for more information on MAGIE and to register.
Founder of Miles Farm Supply Passes
We were saddened to hear that Mr. William S. Miles, 94, of Owensboro, KY died Tuesday, July 21, 2015. Born on August 27, 1920 in Owensboro, he was a farmer and co-owner of Miles Farm Supply. Father of Billy Joe Miles, Mr. Miles had two children, five grandchildren, eight great grandchildren and three great great grandchildren. Mr. Miles was a fine farmer, businessman and person that exuded all the best qualities associated with farming. Our thoughts and prayers go out to Billy Joe, Debra and the entire Miles family for their loss.
ResponsibleAg Helps Prevent Violations Like This
In a settlement agreement with EPA Region 7 filed today, a national company agreed to pay a $67,404 civil penalty to settle alleged violations of the Clean Air Act at its fertilizer facilities located in Kansas. The company is also required to spend an additional $113,121 on emergency response equipment to complete a Supplemental Environmental Project, benefitting the local Fire Department. EPA inspections revealed the company exceeded the threshold quantity of anhydrous ammonia in processes at each of the three facilities. This requires each facility to file a Risk Management Plan with EPA and implement a risk management program. "Companies have a responsibility to their employees, and the surrounding communities, to ensure they are using the best safety practices, and adhering to all regulations, when working with potentially dangerous chemicals," said EPA Region 7 Acting Administrator Mark Hague. "The Chemical Accident Prevention regulations exist to help ensure our communities are healthy, and that companies are doing all they can to work safely." By agreeing to the settlement, the company has certified that it is in compliance with the Clean Air Act and all of its requirements.
DOT Corrects Medical Exam and Recordkeeping Language
DOT recently published corrections to the Medical Examiner's Certification rule that appeared in the Federal Register on April 23, 2015 (80 FR 22790). Among the corrections was clarification on the implementation date for use of the revised medical examination report form and medical examiner's certificates. According to the revised text, the existing medical forms must be used until December 22, 2015, after which only the new versions of the forms will be accepted by DOT. The modified rule is effective June 22, 2015.
In the rule published in April, DOT amended the Federal Motor Carrier Safety Regulations (FMCSRs) to require certified medical examiners (MEs) performing physical examinations of commercial motor vehicle (CMV) drivers to use a newly developed Medical Examination Report (MER) Form, MCSA-5875, in place of the current MER Form and to use Form MCSA-5876 for the Medical Examiner's Certificate (MEC). Additionally, MEs must report results of all CMV drivers' physical examinations performed (including the results of examinations where the driver was found not to be qualified) to DOT by midnight (local time) of the next calendar day following the examination. That final rule was a follow-on rule to the Medical Certification Requirements as Part of the CDL rule final rule, published on December 1, 2008, and the National Registry of Certified Medical Examiners final rule, published on April 20, 2012.
DOT Doesn't Authorize "recreational" or "medical" Use of Marijuana
Recently, some states have passed initiatives to permit use of marijuana for so-called "recreational" purposes, and some states have enacted laws authorizing the use of "medical marijuana." The US DOT, Office of Drug & Alcohol Policy & Compliance, has issued notices that make it perfectly clear that the state initiatives or laws will have no bearing on the Department of Transportation's regulated drug testing program. The DOT's Drug and Alcohol Testing Regulation does not authorize the use of Schedule I drugs, including marijuana, for any reason. Therefore, Medical Review Officers (MROs) will not verify a drug test as negative based upon learning that the employee used either "recreational marijuana" or "medical marijuana." It is important to note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety-sensitive employee subject to drug testing under the DOTs drug testing regulations to use marijuana.
Medical Review Board to Meet Regarding Changes to Diabetes Standard
DOT is announcing a meeting of its Medical Review Board (MRB). The MRB will identify factors the agency should consider with regard to regulatory actions concerning Type I diabetes and vision standards for interstate commercial motor vehicle (CMV) drivers. This follows the agency's issuance of a Notice of Proposed Rulemaking on May 4, 2015, that would permit drivers with stable, well-controlled insulin-treated diabetes mellitus (ITDM) to be qualified to operate CMVs in interstate commerce. The MRB discussions would precede the agency's consideration of a rulemaking concerning the vision standard.
Oregon Adopts Modified Version of Federal Injury Reporting Change
Oregon OSHA recently adopted Federal OSHA's changes to the injury/illness reporting requirements.
While the rule is essentially the same as Federal OSHA's, Oregon did clear up confusion about when to report amputations versus avulsions. In Oregon OSHA's version of the rule, employers are required to report amputations and avulsions that include bone or cartilage loss. Federal OSHA does not require reporting of avulsions.
DOL Works to "weed out" Misclassified Independent Contractors
On July 15th, the Wage and Hour Division of the U.S. Department of Labor issued Administrator's Interpretation 2015-1: The Application of the Fair Labor Standards Act's "Suffer or Permit" Standard in the Identification of Employees Who Are Misclassified as Independent Contractors. It states the DOL's unequivocal opinion that "most workers are employees," under the FLSA. The "ultimate inquiry," according to the DOL, is "whether the worker is economically dependent on the employer [and, hence, an employee] or truly in business for him or herself [and, hence, an independent contractor]."
USDOT Numbers: The Who, What, Why, Where, and When
This article is made possible by J.J. Keller & Associates, a valued partner of the Asmark Institute for over 24 years. Our thanks to J.J. Keller for their support over the years and for the use of this article.
We are often asked, "Do I need a USDOT number?" If the vehicle meets the definition of a commercial motor vehicle (CMV) in §390.5, most of the Federal Motor Carrier Safety Regulations (FMCSR) apply. This includes the registration requirements of §390.19 and marking requirements of §390.21.Compliance is often a matter of having a good and accurate story to tell using the tried and true "Five W's" - who, what, why, where, and when.
Who:
The Federal Motor Carrier Safety Administration (FMCSA) has a FAQ answering the question "Who needs to get a USDOT number?" In general, a USDOT Number is required if you are operating in interstate commerce and:
  • You have vehicles that are over 10,000 lbs.
  • You transport between 9 and 15 passengers (including the driver) for compensation
  • You transport 16 or more passengers
  • You haul hazardous materials
Using the above guidance, the FMCSA requires carriers that are interstate and meet the operation criteria to have a USDOT number. And then, you may ask, what about intrastate carriers? If the vehicle is used in intrastate movements only, then the rules of the state apply. However, 33 states also require a USDOT number for their intrastate carriers and CMVs.
Each corporate identity should have its own USDOT number. A corporate identity is usually defined by a Federal Employer Identification Number (FEIN) issued by the Internal Revenue Service (IRS). This means that subsidiaries or "sister" corporations cannot share a number. On the other hand, divisions within a corporation falling under the FEIN of the parent company should all use the parent company's USDOT number. Individuals use their Social Security Number.
What:
The USDOT number is the government-supplied carrier numerical identification and is an indication that the carrier has registered with the FMCSA as required by §390.19. Since numbers are much less subjective than names, letters, and symbols, the number is used as the primary reference for all of the DOT databases. The number is applied for by submitting an MCS-150.
Any vehicle that is subject to the FMCSRs needs to display the USDOT number. This is true even if the vehicle is only sometimes a CMV, such as a pick-up truck with a trailer that, in combination, is 10,001 pounds or more (rated or actual) involved in interstate commerce.
Why:
The FMCSA is responsible for the safe operation of commercial vehicles on the nation's interstate and designated highways. The USDOT number provides a method of identifying which vehicles are in scope of their mission and provides a standard means of archiving safety history discovered through roadside inspections, crash investigations, and compliance reviews.
Where:
The display, or marking, requirements for CMVs are found in §390.21. On both sides of the vehicle, the marking must display:
  • The legal name or single trade name of the company operating the vehicle, and
  • The motor carrier identification number, which is issued by the FMCSA, preceded by the letters "USDOT."
If there is more than one name on the vehicle, the above must be preceded by "Operated by."
Other points:
  • Letters to be in "sharp" contrast to the background
  • Letters to be readily legible, during daylight hours, from a distance of 50 feet
When:
In addition to the initial registration, it is important to know that the registration process is not a "one and done" system. The MCS-150 contains 30 unique questions, many of which have subsections. The FMCSA understands that business models change and companies can grow or shrink. The FMCSA requires biennial (every other year) updates based on the USDOT number. The last digit indicates the assigned month to update and the second to last signifies whether the update needs to be done in an even or odd year.
Some of the information can affect the formulas used to compile Compliance Safety Accountability (CSA) scores for the Unsafe Driving and Crash Indicator BASICs (Behavioral Analysis and Safety Improvement Categories). For this reason, it may be advantageous to not wait until the next scheduled update. The FMCSA allows updates at any time; however, the biennial update is still expected.
Using the Five W's of who, what, why, where, and when, a carrier can keep its story straight and clean to avoid compliance headaches. This is true not only for USDOT number compliance, but also to ensure effective processes and procedures.
Most Quoteworthy: "For a long time, people were saying that most accidents were due to human error and this is true in a sense but it's not very helpful. It's a bit like saying that falls are due to gravity." - Dr. Trevor Kletz, recognized as the father of process safety, he was a prolific British author on the topic of chemical engineering safety. He is credited with introducing the concept of inherent safety and was a major promoter of Hazop.
2015 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.