International Clients
Australia
Canada
South America
×
 
Main Menu
Select A Category
About Us
Hot Topics
International Clients
Resources
Training Centers
 
Back to Main Menu
Hot Topics
Consolidation Chart
Helping Your CDL Drivers...
How To Comply (CFATS)
Prepare for a DOT Audit
PSM for Ag Retailers
Restricted CDL Report
 
Back to Main Menu
International Clients
Australia
Canada
South America
 
<
 
List
 
>
Newsletter
Volume 147
February 1, 2016
PSM: Big Finish By March 1st
As it stands today, OSHA is only prohibited from implementing the retail facility interpretation change until September 30, 2016. For several reasons, including avoiding the spring busy season, we continue to recommend our clients use this extra time wisely (upgrading their installations, lining up contractors, etc.) to move forward in developing their PSM programs with the goal of substantial compliance by July 22, 2016. This includes the upgrade and preparation of the RMP Program 3 submissions. Retailers have become accustomed to a June anniversary date for their RMP considering the seasons and time requirements for preparation. Based on our experience, we recommend adopting the July 22, 2016 as the new date in association with the PSM requirements. If you haven't already, please complete these steps to stay on track:
  • Proof and return your P&ID diagram to the Asmark Institute.
  • Develop your PSM program, starting with:
    • Mechanical Integrity Manual (Update)
    • Written Operating Procedures (Create)
    • Process Hazard Analysis (Complete)
  • Send us your information to upgrade your RMP to a Program 3 by March 1, 2016.
Upon receiving the information to upgrade your RMP to a Program 3, the Asmark Institute will prepare the submission as always, send you a draft to proof and submit your RMP to EPA on July 22, 2016. Dustin Warder is our lead on PSM/RMP and can be contacted at 270-926-4600, Ext 203.
CSB Releases Investigation Report on West Fertilizer
The U.S. Chemical Safety Board (CSB) presented their long-awaited Investigation Report on the West Fertilizer facility explosion on January 28th in Waco, Texas. As feared in the days immediately following the April 17, 2013 tragedy, the report highlights gaps, limitations and outright absence of federal regulation as likely facilitating the fire and explosion. CSB's report and recommendations were met with mixed feelings by the ag retail industry based on the content. CSB's report speculated the event could likely have been prevented had Process Safety Management (PSM) regulations been in place for fertilizer grade ammonium nitrate (FGAN) and calls on both OSHA and EPA to add FGAN to the list of regulated substances.
CSB's report cited the "retail exemption" as one of the faults that led to the event. At the time of the incident, West Fertilizer qualified for OSHA's "retail exemption" from PSM, meaning the company didn't have to comply with the rule because more than half of its income was derived from sales to direct end users. Had the PSM rule applied to West, the company would have had to conduct a process hazard analysis that, among other things, would have identified the close proximity of the facility's AN storage warehouse and its anhydrous ammonia storage tanks. That knowledge, in turn, theoretically would have led the company to implement additional safeguards according to CSB. The explosion damaged West's anhydrous ammonia tanks according to CSB. OSHA, in a December 23, 2015 memo, said the agency won't cite storage facilities for failing to comply with its recent reinterpretation of the PSM retail exemption through September 30, 2016. Although anhydrous ammonia played no role in the West Fertilizer incident, all indications are that it will be affected by CSB's recommendations.
We recommend every retailer, regardless of whether or not you handle ammonium nitrate or anhydrous ammonia, review the CSB report and video. Click here to watch the 12 minute video and click here to access the 265 page Investigation Report.
SARA: Don't Let the March 1st Deadline Slip Up on You
As a reminder worth mentioning, SARA Tier II submissions are due on March 1st. These are annual requirements that most retailers are familiar with; however, the penalties have become quite severe for non-compliance. We believe it is prudent to remind our clients of the upcoming deadline. Each of our clients required to submit a SARA Tier II Report will have received either a Master Report to be used by the facility personnel in reporting and certifying the data electronically as mandated by their state, or the packet of traditional hard copies to be signed, certified and submitted to their State Emergency Response Commission, Local Emergency Planning Commission and Fire Department. Don't forget to follow your state's instructions to pay any applicable fees. Note: We will once again ask that you send us a file copy of your Tier II documentation filed with the State. We review the documentation for completeness, scan and archive the final version on Snapshots. We provide this extra level of service because we find that more than 20% of the reports have never been acknowledged by the State - so the facility believes they have submitted when the State doesn't have any record of it.
Pesticide-Production Report Update
Reminder: Asmark Institute submits and documents receipt of the Pesticide Production Report by U.S. EPA for each of our clients. All clients' reports are currently out for signature and should be returned as soon as possible. Nick Clements is responsible for this process and can be contacted at nick.clements@asmark.org or by phone at 270-926-4600, Ext 212. Plans are to file all annual reports on schedule to be received by U.S. EPA by the March 1st deadline.
Reminder: Time to Post Your 300A
It's time to complete your 2015 injury and illness recordkeeping obligations by posting the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A). OSHA requires that the notice be displayed from February 1st to April 30th of each year in a conspicuous place where employee notices are customarily posted. Businesses with no injuries or illnesses for the year must still post the form. A company official must certify the information in Form 300A was examined and is believed to be correct and complete. Click here to access the form and instructions.
Injury Reporting Webpage Simplified - Now Online!
To help employers comply with new requirements to report severe worker injuries, OSHA has created a streamlined reporting webpage and now offers the option of reporting incidents online. The expanded requirements took effect in January. Now, in addition to reporting any worker fatality within 8 hours, employers must report within 24 hours any severe injury - defined as an amputation, hospitalization or loss of an eye. In the first year of the new requirement, OSHA received about 12,000 reports.
Electronic Service Program (ESP)
More and more of our clients are electing to use ESP to receive their correspondence electronically. With each new postal increase, ESP becomes more attractive. If you are already an ESP user, please make sure you are checking and opening your notifications as they contain time-sensitive reports - especially this time of year. If you are interested in becoming an ESP user, please contact any one of our Customer Service Representatives at Extension 506 and they will help you get started.
Environmental Respect Award Call for Entries
Join the hundreds of ag retailers worldwide who have been honored for their commitment to environmental safety and security. Click here for more information.
Reminder: DOT Revises Physical Report and Card
DOT announced a 120-day grace period during which Medical Examiners may use either the current or the newly revised versions of the Medical Examination Report Form and Medical Examiner's Certificate. This period is from December 22, 2015 until April 20, 2016, due to a problem DOT encountered in adhering to their own schedule. There has been some confusion so, it's finally official - the old AND new forms and cards can be used until April 20, 2016.
Methyl Bromide Users - We Need To Hear From You!
If you are a client of the Asmark Institute that handles methyl bromide, we need to hear from you. We understand there may be some retailers that still today handle methyl bromide for certain, very specific uses exempted by EPA. There are reporting obligations for the product that is handled under the Stratospheric Ozone Protection Program. If you plan to handle methyl bromide at your location in 2016 then please contact Dustin at dustin@asmark.org, or at Extension 203 to let him know. Once we get a handle on how many of our clients are involved with this program, we may be able to help with the reporting.
KY DOT Issues New Warning for Transporting Dual Wheeled Farm Equipment
Under a new interpretation of the law, the Kentucky State Police Commercial Vehicle Enforcement Division started issuing warnings late last fall to lowboys transporting dual wheeled farm equipment, even those in possession of a proper over-width permit. Commercial Vehicle Enforcement says that the oversized permit only allows for the transportation of farm equipment with single wheels, therefore the transporter needs to remove the wheels prior to delivery and then put them back on once they get to their final destination. The Agri-Business Association of Kentucky (ABAK) met with the Kentucky Transportation Cabinet, the State Police and Governor Beshear's office to discuss the problem and the costly burden this will place on the agricultural industry. As a result, Senate Bill 76, sponsored by Senators Paul Hornback, Stan Humphries, and Dennis Parrett, was filed to reverse this new interpretation and would allow equipment dealers to transport equipment with dual wheels left on the equipment. If this issue impacts your operation, we would ask you to contact your State Senator and your State Representative NOW to ask him/her to support Senate Bill 76.
Joint Employers: Heads Up!
On January 20th the U.S. Department of Labor's Wage and Hour Division issued an Administrator's Interpretation on joint employment under the Fair Labor Standards Act (FLSA) and Migrant and Seasonal Agricultural Worker Protection Act (MSPA). Under these laws, it is a longstanding principle that a worker can be jointly employed by two or more employers who are both responsible, simultaneously, for compliance. Whether an employee has more than one employer is important in determining employees' rights and employers' obligations under the FLSA and MSPA.
The Wage and Hour Division (WHD) has been examining employment relationships during investigations into possible wage and other labor violations for decades. They consider joint employment in hundreds of investigations every year. Protecting workers in fissured workplaces - where there is increasingly the possibility that more than one employer is benefiting from the work - has recently been a major focus. WHD will consider joint employment to hold all responsible parties accountable for their legal obligations. For more information, please visit our Joint Employment AI webpage
DOT Seeks Feedback on Carrier Safety Fitness Determination
DOT recently announced a rulemaking proposal designed to enhance their ability to identify non-compliant motor carriers. The Safety Fitness Determination (SFD) Notice of Proposed Rulemaking (NPRM), to be published in the Federal Register, would update DOT's safety fitness rating methodology by integrating on-road safety data from inspections, along with the results of carrier investigations and crash reports, to determine a motor carrier's overall safety fitness on a monthly basis.
The proposed SFD rule would replace the current three-tier federal rating system of "satisfactory-conditional-unsatisfactory" for federally regulated commercial motor carriers (in place since 1982) with a single determination of "unfit," which would require the carrier to either improve its operations or cease operations.
Once in place, the SFD rule will permit DOT to assess the safety fitness of approximately 75,000 companies a month. By comparison, the agency is only able to investigate 15,000 motor carriers annually - with less than half of those companies receiving a safety rating.
The proposed methodology would determine when a carrier is not fit to operate commercial motor vehicles in or affecting interstate commerce based on:
  1. The carrier's performance in relation to a fixed failure threshold established in the rule for five of the agency's Behavior Analysis and Safety Improvement Categories (BASICs);
  2. Investigation results; or
  3. A combination of on-road safety data and investigation information.
The proposed rule further incorporates rigorous data sufficiency standards and would require that a significant pattern of non-compliance be documented in order for a carrier to fail a BASIC.
When assessing roadside inspection data results, the proposal uses a minimum of 11 inspections with violations in a single BASIC within a 24-month period before a motor carrier could be eligible to be identified as "unfit." If a carrier's individual performance meets or exceeds the failure standards in the rule, it would then fail that BASIC. The failure standard will be fixed by the rule. A carrier's status in relation to that fixed measure would not be affected by other carriers' performance.
Failure of a BASIC based on either crash data or compliance with drug and alcohol requirements would only occur following a comprehensive investigation. DOT estimates that under this proposal, less than 300 motor carriers each year would be proposed as "unfit" solely as a result of on-road safety violations. Further, the agency's analysis has shown that the carriers identified through this on-road safety data have crash rates of almost four times the national average.
DOT encourages the public to review the NPRM and to submit comments and evidentiary materials to the docket following its publication in the Federal Register. The public comment period will be open for 60 days. DOT will also be providing a reply comment period allowing for an additional 30 days for commenters to respond to the initial comments.
For more information on DOT's Safety Fitness Determination proposed rule, visit www.fmcsa.dot.gov/sfd. To comment on the rule once it is published in the Federal Register, please use www.regulations.gov and docket number FMCSA-2015-0001.
Simplot's Innate Second Generation Potato Receives FDA Safety Clearance
FDA has completed its food and feed safety assessment of the J.R. Simplot Company's second generation of Innate potatoes. The FDA concluded that these Russet Burbank Generation 2 potatoes are not materially different in composition, safety, and other relevant parameters, from any other potato or potato-derived food or feed currently on the market. Simplot will still need to complete its registration with the Environmental Protection Agency for these potatoes before introducing them for sale in the U.S. marketplace.
Simplot's second generation of Innate potatoes contains four benefits of relevance to potato growers, processors and consumers: reduced bruising and black spots; reduced asparagine; resistance to late blight pathogens; and enhanced cold storage capability. These benefits were achieved by adapting genes from wild and cultivated potatoes.
Academics consulted by Simplot estimate that the Innate late blight resistance trait can result in a 25-45% reduction in fungicide applications annually to control late blight. Reduced asparagine means that accumulation levels of acrylamide can be reduced by up to 90 percent when these potatoes are cooked at high temperatures. In addition, lowered reducing sugars enable cold storage at 38°F for more than six months without the build-up of sugars, which maintains quality, and which could not be achieved until today. Based on these academic estimates, if all Russet Burbank potatoes in the United States had Innate Gen. 2 traits, it is estimated that potato waste (in-field, during storage, packing, retail and food service for fresh potatoes) could be reduced by 986 million pounds. In addition, CO2 emissions could be reduced by 146 million pounds, water usage reduced by 17 billion gallons and a total of 495,000 fewer pesticide acre-applications would be needed.
Late blight, the disease responsible for the historic Irish potato famine, is caused by a fungus-like pathogen and still has the potential to devastate world potato crops. Innate Gen. 2 potatoes contain a gene from a South American wild potato species that provides natural resistance to certain strains of the pathogen.
Federal Wage and Labor Law Poster Updates
Washington - Tacoma
Minimum Wage (Effective date 02/2016) - Tacoma has released their new minimum wage notice. The new wage will be $10.35 per hour. Notice must be provided, in print or electronically, in English, Spanish, Vietnamese, Thai, Mandarin and Russian. This is a substantive change and a new Tacoma Minimum Wage poster is required. Paid Sick Leave (Effective date 02/2016) - Tacoma's Paid Sick Leave goes into effect on February 1st, 2016. This is a substantive change and a new Tacoma Paid Sick Leave poster is required. Click here to order.
New York
Hospitality Wage Order (Effective date 02/2016) - New York has released the new Hospitality Wage Order. The new list includes both the new wage for fast food workers in New York City as well as the current and future wages for fast food workers in the rest of the state. The wages for non-fast food workers in the hospitality industry remain the same. This is a substantive change and an updated New York Hospitality Wage Order poster is required. Click here to order.
Minimum Wage (Effective date 01/2016) - New York anticipates releasing their new Minimum Wage notice on December 31st, 2015. The only thing changing should be the wage itself, which will be $9.00. Tip credits and minimum wages for tipped employees depend on the industry the employee is in and are listed on the various Wage Orders, which include the upcoming year. This is a substantive change and an updated New York poster is required. Click here to order.
California
Workers' Compensation (Effective date 01/2016) - California has released the new Workers' Compensation notice. This substantially revises the sections addressing the physicians that can treat an employee injured on the job, as well as who can be contacted for assistance with locating a physician or filing a claim. Version 5.0 projected availability: The week of January 11th. This is a substantive change and an updated California All-In-One poster is required. Click here to order.
California - Santa Clara
Workers' Compensation (Effective date 01/2016) - The minimum wage was increased to $11.00 per hour on January 1, 2016. The notice must be posted in the top three languages spoken in the city (English, Spanish, Vietnamese). This is a substantive change and a new Santa Clara poster is required. Click here to order.
California - Mountain View
Minimum Wage (Effective date 01/2016) - Mountain View has released the new Minimum Wage notice. The wage increased to $11.00 per hour on January 1st 2016 for employers in the city. The notice must be posted in English and any language spoken by 5% or more of the empoyees. English, Spanish, Mandarin, and Russian are currently available. Click here to order.
California - Oakland
Minimum Wage (Effective date 01/2016) - The city of Oakland has released their new minimum wage notice. The new wage will be $12.55 as of January 1, 2016. The notices must be posted in English and any language spoken by 10% of the employees. English, Spanish and Cantonese are available. This is a substantive change and an updated Oakland Minimum Wage poster is required. Click here to order.
California - Richmond
Minimum Wage (Effective date 01/2016) - Richmond has released their Minimum Wage notice. The minimum wage will increase to $11.52 on January 1, 2016. Also, $10.76 for employers for whom 50% or more of their income is derived from transactions where the employer's goods and services are produced by the employer in Richmond. This is a substantive change and an updated Richmond poster is required. Click here to order.
Florida
Human Trafficking (Effective date 01/2016) - On January 1st, Florida's new Human Trafficking law took effect. The law requires that a sign be posted at every rest area, turnpike service plaza, weigh station, primary airport, passenger rail station and welcome center in the state which is open to the public. General acute care hospitals must display this notice in their emergency rooms. Also, employers are required to display the sign in a conspicuous location that is clearly visible to the public and employees of strip clubs and other adult entertainment establishments or a business that offers massage or bodywork services for compensation that is not owned by a health care profession regulated pursuant to chapter 456 and defined in s.456.001. The notice must be posted in English and Spanish. This is a substantive change and a new Florida Human Trafficking poster is required. Click here to order.
Minimum Wage (Effective date 01/2016) - Florida has released a new version of the Minimum Wage notice. Though the wage itself remains unchanged, the new notice denotes that it is the 2016 notice. We have been told by the DOL that the new notice is required despite the lack of a change to the wage. This is a substantive change and an updated Florida poster is required. Click here to order.
Oregon
Sick Time (Effective date 01/2016) - Oregon has released their Sick Time law notice. Employers are required to provide employees with a notice of the law's provisions. While this notice is not required to be posted, it must at least be given to employees, included in an Employee Handbook, etc. Click here to order.
Texas
Gun Laws (Effective date 01/2016) - While these notices are not required to be posted, if a business chooses not to allow guns into their establishment, whether concealed (30.06) or open carry (30.07), a notice must be posted. Click here to order.
Ohio
Minimum Wage (Effective date 01/2016) - Ohio has released the new version of their Minimum Wage notice. Though the wage itself remains unchanged, the new notice denotes that it is the 2016 notice. We have been told by the DOL that the new notice is required despite the lack of a change to the wage. This is a substantive change and an updated Ohio poster is required. Click here to order.
2016 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.
PSM: Big Finish By March 1st
As it stands today, OSHA is only prohibited from implementing the retail facility interpretation change until September 30, 2016. For several reasons, including avoiding the spring busy season, we continue to recommend our clients use this extra time wisely (upgrading their installations, lining up contractors, etc.) to move forward in developing their PSM programs with the goal of substantial compliance by July 22, 2016. This includes the upgrade and preparation of the RMP Program 3 submissions. Retailers have become accustomed to a June anniversary date for their RMP considering the seasons and time requirements for preparation. Based on our experience, we recommend adopting the July 22, 2016 as the new date in association with the PSM requirements. If you haven't already, please complete these steps to stay on track:
  • Proof and return your P&ID diagram to the Asmark Institute.
  • Develop your PSM program, starting with:
    • Mechanical Integrity Manual (Update)
    • Written Operating Procedures (Create)
    • Process Hazard Analysis (Complete)
  • Send us your information to upgrade your RMP to a Program 3 by March 1, 2016.
Upon receiving the information to upgrade your RMP to a Program 3, the Asmark Institute will prepare the submission as always, send you a draft to proof and submit your RMP to EPA on July 22, 2016. Dustin Warder is our lead on PSM/RMP and can be contacted at 270-926-4600, Ext 203.
CSB Releases Investigation Report on West Fertilizer
The U.S. Chemical Safety Board (CSB) presented their long-awaited Investigation Report on the West Fertilizer facility explosion on January 28th in Waco, Texas. As feared in the days immediately following the April 17, 2013 tragedy, the report highlights gaps, limitations and outright absence of federal regulation as likely facilitating the fire and explosion. CSB's report and recommendations were met with mixed feelings by the ag retail industry based on the content. CSB's report speculated the event could likely have been prevented had Process Safety Management (PSM) regulations been in place for fertilizer grade ammonium nitrate (FGAN) and calls on both OSHA and EPA to add FGAN to the list of regulated substances.
CSB's report cited the "retail exemption" as one of the faults that led to the event. At the time of the incident, West Fertilizer qualified for OSHA's "retail exemption" from PSM, meaning the company didn't have to comply with the rule because more than half of its income was derived from sales to direct end users. Had the PSM rule applied to West, the company would have had to conduct a process hazard analysis that, among other things, would have identified the close proximity of the facility's AN storage warehouse and its anhydrous ammonia storage tanks. That knowledge, in turn, theoretically would have led the company to implement additional safeguards according to CSB. The explosion damaged West's anhydrous ammonia tanks according to CSB. OSHA, in a December 23, 2015 memo, said the agency won't cite storage facilities for failing to comply with its recent reinterpretation of the PSM retail exemption through September 30, 2016. Although anhydrous ammonia played no role in the West Fertilizer incident, all indications are that it will be affected by CSB's recommendations.
We recommend every retailer, regardless of whether or not you handle ammonium nitrate or anhydrous ammonia, review the CSB report and video. Click here to watch the 12 minute video and click here to access the 265 page Investigation Report.
SARA: Don't Let the March 1st Deadline Slip Up on You
As a reminder worth mentioning, SARA Tier II submissions are due on March 1st. These are annual requirements that most retailers are familiar with; however, the penalties have become quite severe for non-compliance. We believe it is prudent to remind our clients of the upcoming deadline. Each of our clients required to submit a SARA Tier II Report will have received either a Master Report to be used by the facility personnel in reporting and certifying the data electronically as mandated by their state, or the packet of traditional hard copies to be signed, certified and submitted to their State Emergency Response Commission, Local Emergency Planning Commission and Fire Department. Don't forget to follow your state's instructions to pay any applicable fees. Note: We will once again ask that you send us a file copy of your Tier II documentation filed with the State. We review the documentation for completeness, scan and archive the final version on Snapshots. We provide this extra level of service because we find that more than 20% of the reports have never been acknowledged by the State - so the facility believes they have submitted when the State doesn't have any record of it.
Pesticide-Production Report Update
Reminder: Asmark Institute submits and documents receipt of the Pesticide Production Report by U.S. EPA for each of our clients. All clients' reports are currently out for signature and should be returned as soon as possible. Nick Clements is responsible for this process and can be contacted at nick.clements@asmark.org or by phone at 270-926-4600, Ext 212. Plans are to file all annual reports on schedule to be received by U.S. EPA by the March 1st deadline.
Reminder: Time to Post Your 300A
It's time to complete your 2015 injury and illness recordkeeping obligations by posting the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A). OSHA requires that the notice be displayed from February 1st to April 30th of each year in a conspicuous place where employee notices are customarily posted. Businesses with no injuries or illnesses for the year must still post the form. A company official must certify the information in Form 300A was examined and is believed to be correct and complete. Click here to access the form and instructions.
Injury Reporting Webpage Simplified - Now Online!
To help employers comply with new requirements to report severe worker injuries, OSHA has created a streamlined reporting webpage and now offers the option of reporting incidents online. The expanded requirements took effect in January. Now, in addition to reporting any worker fatality within 8 hours, employers must report within 24 hours any severe injury - defined as an amputation, hospitalization or loss of an eye. In the first year of the new requirement, OSHA received about 12,000 reports.
Electronic Service Program (ESP)
More and more of our clients are electing to use ESP to receive their correspondence electronically. With each new postal increase, ESP becomes more attractive. If you are already an ESP user, please make sure you are checking and opening your notifications as they contain time-sensitive reports - especially this time of year. If you are interested in becoming an ESP user, please contact any one of our Customer Service Representatives at Extension 506 and they will help you get started.
Environmental Respect Award Call for Entries
Join the hundreds of ag retailers worldwide who have been honored for their commitment to environmental safety and security. Click here for more information.
Reminder: DOT Revises Physical Report and Card
DOT announced a 120-day grace period during which Medical Examiners may use either the current or the newly revised versions of the Medical Examination Report Form and Medical Examiner's Certificate. This period is from December 22, 2015 until April 20, 2016, due to a problem DOT encountered in adhering to their own schedule. There has been some confusion so, it's finally official - the old AND new forms and cards can be used until April 20, 2016.
Methyl Bromide Users - We Need To Hear From You!
If you are a client of the Asmark Institute that handles methyl bromide, we need to hear from you. We understand there may be some retailers that still today handle methyl bromide for certain, very specific uses exempted by EPA. There are reporting obligations for the product that is handled under the Stratospheric Ozone Protection Program. If you plan to handle methyl bromide at your location in 2016 then please contact Dustin at dustin@asmark.org, or at Extension 203 to let him know. Once we get a handle on how many of our clients are involved with this program, we may be able to help with the reporting.
KY DOT Issues New Warning for Transporting Dual Wheeled Farm Equipment
Under a new interpretation of the law, the Kentucky State Police Commercial Vehicle Enforcement Division started issuing warnings late last fall to lowboys transporting dual wheeled farm equipment, even those in possession of a proper over-width permit. Commercial Vehicle Enforcement says that the oversized permit only allows for the transportation of farm equipment with single wheels, therefore the transporter needs to remove the wheels prior to delivery and then put them back on once they get to their final destination. The Agri-Business Association of Kentucky (ABAK) met with the Kentucky Transportation Cabinet, the State Police and Governor Beshear's office to discuss the problem and the costly burden this will place on the agricultural industry. As a result, Senate Bill 76, sponsored by Senators Paul Hornback, Stan Humphries, and Dennis Parrett, was filed to reverse this new interpretation and would allow equipment dealers to transport equipment with dual wheels left on the equipment. If this issue impacts your operation, we would ask you to contact your State Senator and your State Representative NOW to ask him/her to support Senate Bill 76.
Joint Employers: Heads Up!
On January 20th the U.S. Department of Labor's Wage and Hour Division issued an Administrator's Interpretation on joint employment under the Fair Labor Standards Act (FLSA) and Migrant and Seasonal Agricultural Worker Protection Act (MSPA). Under these laws, it is a longstanding principle that a worker can be jointly employed by two or more employers who are both responsible, simultaneously, for compliance. Whether an employee has more than one employer is important in determining employees' rights and employers' obligations under the FLSA and MSPA.
The Wage and Hour Division (WHD) has been examining employment relationships during investigations into possible wage and other labor violations for decades. They consider joint employment in hundreds of investigations every year. Protecting workers in fissured workplaces - where there is increasingly the possibility that more than one employer is benefiting from the work - has recently been a major focus. WHD will consider joint employment to hold all responsible parties accountable for their legal obligations. For more information, please visit our Joint Employment AI webpage
DOT Seeks Feedback on Carrier Safety Fitness Determination
DOT recently announced a rulemaking proposal designed to enhance their ability to identify non-compliant motor carriers. The Safety Fitness Determination (SFD) Notice of Proposed Rulemaking (NPRM), to be published in the Federal Register, would update DOT's safety fitness rating methodology by integrating on-road safety data from inspections, along with the results of carrier investigations and crash reports, to determine a motor carrier's overall safety fitness on a monthly basis.
The proposed SFD rule would replace the current three-tier federal rating system of "satisfactory-conditional-unsatisfactory" for federally regulated commercial motor carriers (in place since 1982) with a single determination of "unfit," which would require the carrier to either improve its operations or cease operations.
Once in place, the SFD rule will permit DOT to assess the safety fitness of approximately 75,000 companies a month. By comparison, the agency is only able to investigate 15,000 motor carriers annually - with less than half of those companies receiving a safety rating.
The proposed methodology would determine when a carrier is not fit to operate commercial motor vehicles in or affecting interstate commerce based on:
  1. The carrier's performance in relation to a fixed failure threshold established in the rule for five of the agency's Behavior Analysis and Safety Improvement Categories (BASICs);
  2. Investigation results; or
  3. A combination of on-road safety data and investigation information.
The proposed rule further incorporates rigorous data sufficiency standards and would require that a significant pattern of non-compliance be documented in order for a carrier to fail a BASIC.
When assessing roadside inspection data results, the proposal uses a minimum of 11 inspections with violations in a single BASIC within a 24-month period before a motor carrier could be eligible to be identified as "unfit." If a carrier's individual performance meets or exceeds the failure standards in the rule, it would then fail that BASIC. The failure standard will be fixed by the rule. A carrier's status in relation to that fixed measure would not be affected by other carriers' performance.
Failure of a BASIC based on either crash data or compliance with drug and alcohol requirements would only occur following a comprehensive investigation. DOT estimates that under this proposal, less than 300 motor carriers each year would be proposed as "unfit" solely as a result of on-road safety violations. Further, the agency's analysis has shown that the carriers identified through this on-road safety data have crash rates of almost four times the national average.
DOT encourages the public to review the NPRM and to submit comments and evidentiary materials to the docket following its publication in the Federal Register. The public comment period will be open for 60 days. DOT will also be providing a reply comment period allowing for an additional 30 days for commenters to respond to the initial comments.
For more information on DOT's Safety Fitness Determination proposed rule, visit www.fmcsa.dot.gov/sfd. To comment on the rule once it is published in the Federal Register, please use www.regulations.gov and docket number FMCSA-2015-0001.
Simplot's Innate Second Generation Potato Receives FDA Safety Clearance
FDA has completed its food and feed safety assessment of the J.R. Simplot Company's second generation of Innate potatoes. The FDA concluded that these Russet Burbank Generation 2 potatoes are not materially different in composition, safety, and other relevant parameters, from any other potato or potato-derived food or feed currently on the market. Simplot will still need to complete its registration with the Environmental Protection Agency for these potatoes before introducing them for sale in the U.S. marketplace.
Simplot's second generation of Innate potatoes contains four benefits of relevance to potato growers, processors and consumers: reduced bruising and black spots; reduced asparagine; resistance to late blight pathogens; and enhanced cold storage capability. These benefits were achieved by adapting genes from wild and cultivated potatoes.
Academics consulted by Simplot estimate that the Innate late blight resistance trait can result in a 25-45% reduction in fungicide applications annually to control late blight. Reduced asparagine means that accumulation levels of acrylamide can be reduced by up to 90 percent when these potatoes are cooked at high temperatures. In addition, lowered reducing sugars enable cold storage at 38°F for more than six months without the build-up of sugars, which maintains quality, and which could not be achieved until today. Based on these academic estimates, if all Russet Burbank potatoes in the United States had Innate Gen. 2 traits, it is estimated that potato waste (in-field, during storage, packing, retail and food service for fresh potatoes) could be reduced by 986 million pounds. In addition, CO2 emissions could be reduced by 146 million pounds, water usage reduced by 17 billion gallons and a total of 495,000 fewer pesticide acre-applications would be needed.
Late blight, the disease responsible for the historic Irish potato famine, is caused by a fungus-like pathogen and still has the potential to devastate world potato crops. Innate Gen. 2 potatoes contain a gene from a South American wild potato species that provides natural resistance to certain strains of the pathogen.
Federal Wage and Labor Law Poster Updates
Washington - Tacoma
Minimum Wage (Effective date 02/2016) - Tacoma has released their new minimum wage notice. The new wage will be $10.35 per hour. Notice must be provided, in print or electronically, in English, Spanish, Vietnamese, Thai, Mandarin and Russian. This is a substantive change and a new Tacoma Minimum Wage poster is required. Paid Sick Leave (Effective date 02/2016) - Tacoma's Paid Sick Leave goes into effect on February 1st, 2016. This is a substantive change and a new Tacoma Paid Sick Leave poster is required. Click here to order.
New York
Hospitality Wage Order (Effective date 02/2016) - New York has released the new Hospitality Wage Order. The new list includes both the new wage for fast food workers in New York City as well as the current and future wages for fast food workers in the rest of the state. The wages for non-fast food workers in the hospitality industry remain the same. This is a substantive change and an updated New York Hospitality Wage Order poster is required. Click here to order.
Minimum Wage (Effective date 01/2016) - New York anticipates releasing their new Minimum Wage notice on December 31st, 2015. The only thing changing should be the wage itself, which will be $9.00. Tip credits and minimum wages for tipped employees depend on the industry the employee is in and are listed on the various Wage Orders, which include the upcoming year. This is a substantive change and an updated New York poster is required. Click here to order.
California
Workers' Compensation (Effective date 01/2016) - California has released the new Workers' Compensation notice. This substantially revises the sections addressing the physicians that can treat an employee injured on the job, as well as who can be contacted for assistance with locating a physician or filing a claim. Version 5.0 projected availability: The week of January 11th. This is a substantive change and an updated California All-In-One poster is required. Click here to order.
California - Santa Clara
Workers' Compensation (Effective date 01/2016) - The minimum wage was increased to $11.00 per hour on January 1, 2016. The notice must be posted in the top three languages spoken in the city (English, Spanish, Vietnamese). This is a substantive change and a new Santa Clara poster is required. Click here to order.
California - Mountain View
Minimum Wage (Effective date 01/2016) - Mountain View has released the new Minimum Wage notice. The wage increased to $11.00 per hour on January 1st 2016 for employers in the city. The notice must be posted in English and any language spoken by 5% or more of the empoyees. English, Spanish, Mandarin, and Russian are currently available. Click here to order.
California - Oakland
Minimum Wage (Effective date 01/2016) - The city of Oakland has released their new minimum wage notice. The new wage will be $12.55 as of January 1, 2016. The notices must be posted in English and any language spoken by 10% of the employees. English, Spanish and Cantonese are available. This is a substantive change and an updated Oakland Minimum Wage poster is required. Click here to order.
California - Richmond
Minimum Wage (Effective date 01/2016) - Richmond has released their Minimum Wage notice. The minimum wage will increase to $11.52 on January 1, 2016. Also, $10.76 for employers for whom 50% or more of their income is derived from transactions where the employer's goods and services are produced by the employer in Richmond. This is a substantive change and an updated Richmond poster is required. Click here to order.
Florida
Human Trafficking (Effective date 01/2016) - On January 1st, Florida's new Human Trafficking law took effect. The law requires that a sign be posted at every rest area, turnpike service plaza, weigh station, primary airport, passenger rail station and welcome center in the state which is open to the public. General acute care hospitals must display this notice in their emergency rooms. Also, employers are required to display the sign in a conspicuous location that is clearly visible to the public and employees of strip clubs and other adult entertainment establishments or a business that offers massage or bodywork services for compensation that is not owned by a health care profession regulated pursuant to chapter 456 and defined in s.456.001. The notice must be posted in English and Spanish. This is a substantive change and a new Florida Human Trafficking poster is required. Click here to order.
Minimum Wage (Effective date 01/2016) - Florida has released a new version of the Minimum Wage notice. Though the wage itself remains unchanged, the new notice denotes that it is the 2016 notice. We have been told by the DOL that the new notice is required despite the lack of a change to the wage. This is a substantive change and an updated Florida poster is required. Click here to order.
Oregon
Sick Time (Effective date 01/2016) - Oregon has released their Sick Time law notice. Employers are required to provide employees with a notice of the law's provisions. While this notice is not required to be posted, it must at least be given to employees, included in an Employee Handbook, etc. Click here to order.
Texas
Gun Laws (Effective date 01/2016) - While these notices are not required to be posted, if a business chooses not to allow guns into their establishment, whether concealed (30.06) or open carry (30.07), a notice must be posted. Click here to order.
Ohio
Minimum Wage (Effective date 01/2016) - Ohio has released the new version of their Minimum Wage notice. Though the wage itself remains unchanged, the new notice denotes that it is the 2016 notice. We have been told by the DOL that the new notice is required despite the lack of a change to the wage. This is a substantive change and an updated Ohio poster is required. Click here to order.
2016 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.