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Newsletter
Volume 149
April 1, 2016
PSM Submissions
PSM: Don't Quit Now!
We continue to recommend our clients develop 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. If you haven't already, it's time to send us your 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.
We are very happy to report, that despite the July 2015 surprise announcement, the huge learning curve, the countless hours of work and the mess of legal wrangling, 78% of our clients made the March 31st deadline to have their PSM program developed and their RMP-3 data submitted to us so we can prepare their final submission. An additional 16% of our clients are really close and should be complete within the next ten days. We encourage you to finish your PSM program before you get into spring season.
PSM Lawsuit Update: Just Tell Us Yes or No
Did OSHA overstep their authority on July 22, 2015 when they rescinded the letter of interpretation that originally granted the "retail exemption" to our industry? ARA and TFI recently petitioned the court to dispense with oral arguments and other expensive and time-consuming legal options, asking simply for a "yes" or "no" to this question. Some expect the court could reply as soon as May, but as late as August.
PSM: Why Not Quit?
We are noticing more and more OSHA personnel "checking out" retail agricultural facilities while they are out and about. They appear to want to become more familiar with the size and type of ag retailer operations. This is similar to what occurred when the DOT officers were tasked with enforcing the presence of legible ASME data plates in 2011. They started by checking the facilities out, all the while gathering data to support an organized sweep enforcing the regulation. We anticipate this will happen with PSM, possibly starting when the court rules, or by September 2016, whichever comes first.
Website Maintenance
Steelworkers Support OSHA in PSM Suit
Saying it has more members directly affected by the process safety management standard than any other union, the United Steel Workers (USW) filed a brief with the court in support of OSHA's position in the challenge to the standard brought by ARA, TFI and others. In 1992, OSHA issued an interpretive letter outlining the "50 percent rule," thus exempting retail facilities.
The July 2015 memorandum, according to OSHA, set out to clarify this apparent discrepancy. ARA, TFI and its fellow petitioners claimed in their challenge to the memorandum that it constituted a major change in the standard, removing many businesses that had considered themselves exempted retailers since the 50 percent rule was announced in 1992. ARA and TFI argued the memorandum created a new standard that must undergo an administrative review process before it is enacted.
USW supports OSHA's argument that the retail memorandum does no more than clarify the PSM standard and, therefore, the court has no jurisdiction to rule on its validity. According to the USW brief, the union represents workers in 58 bargaining units that are directly affected by OSHA's interpretation of the PSM standard. "Its members will suffer an injury-in-fact if OSHA's Retail Memorandum is invalidated," the USW said.
USW argues that the Retail Memorandum is a valid "interpretation" rather than a new standard because the document it interprets-the letter that set out the 50 percent rule-wasn't itself subjected to administrative review. "OSHA pulled the fifty percent test out of thin air, citing nothing as support for this definition of retail facilities,'" the union said. Citing Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (U.S. 2015), the USW argued, "If the fifty percent test was a valid interpretation of the PSM standard, then OSHA is permitted to revise or repeal the interpretation and substitute a new or different interpretation, using the same procedures as it did initially."
Watch for your set of 2016 Regulatory Posters!
The 2016 regulatory posters shipped and should have hit your desk sometime in the past week. The delays each year get a little longer and are due to the increase in the regulatory activity that prompts the labels and Safety Data Sheets to be revised. The set of three includes posters with information on DOT shipping descriptions, Worker Protection Standards and Restricted-Use Products. Amber Duke heads up the ProFiles Database and printed materials such as the popular set of posters. Amber can be contacted at 270-926-4600, Ext 213.
Brussels Attack Not Ammonium Nitrate
Separately, we've heard from our affiliates at TFI and ARA that several media sources incorrectly reported that ammonium nitrate was used by the terrorists in the recent attacks in Europe.
Spotlight: It's Time to Register With ResponsibleAg
Almost 2,000 facilities have registered with the ResponsibleAg Certification Program, with 154 facilities already receiving their certification. We encourage you to register your facilities today and support the program. 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. For more information and to register, go to: www.responsibleag.org
Become a ResponsibleAg Auditor or Attend to Learn More....
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. More than 140 people have already participated in the training, with more than 84 choosing to become credentialed by ResponsibleAg. To become a ResponsibleAg auditor, the first step is to attend the training. Registration is open and two classes are offered per year. The next class will be on September 13-16th. Click here to register. This is the only course scheduled for the remainder of 2016, so register soon to reserve your seat.
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.
New 2016 ERGs Coming Soon
Our partners at J.J. Keller & Associates notified us recently the guidebooks will be printed and ready for delivery soon. Until then, the 2012 version of the ERG should be used as the current version of the manual. We pre-ordered a truck load to get the very best pricing and we took orders during the annual compliance visit. Once we receive the new manuals, we will turn them around in less than 48 hours and fill the orders that have been placed throughout the winter. We are happy to announce the prices will remain the same as they were back in 2012: $1.25
License Requirements for Ammonia Nurse Tanks
The Illinois Fertilizer and Chemical Association (IFCA) recently reminded their members that ammonia nurse tanks are required to have license plates in Illinois, and the stickers renewed every two years. This past year, the Illinois Secretary of State (SOS) did not send out renewal notices. Instead, IFCA had their members send in a list of their nurse tank trailers and plate numbers to the SOS office in Springfield to get their renewal stickers. If you DID NOT get your renewal stickers for your nurse tank plates before they expired on December 31st, at this point you can take your nurse tank trailer information and license numbers for the nurse tanks to your local SOS office to get the stickers. There is no late fee at this point, but don't put it off any longer. If you encounter problems at the local SOS office, and are an IFCA member, please call IFCA at 309-827-2774.
Braking Requirements for Ag Equipment Under Review
The American Society of Agricultural & Biological Engineers (ASABE) Machine Systems (MS) recently reviewed the work of a small task force of braking system experts. This group compared the current requirements in ASAE S365.9, which are 15-years-old, to more current braking requirements from regions of the world that have taken into consideration ever-increasing equipment weights and faster towing speeds. The committee reports that S365.9: (1) Has no provision to allow towing of a light-weight ag vehicle without brakes at speeds exceeding 20 mph; (2) Has no distinction between commodity trailers with variable transport loads and implements with fixed transport loads; (3) Does not address how the brake system interfaces between towing vehicle and the towed vehicle; (4) Has no provisions to warn the operator that the brake system has failed; (5) Does not clearly address requirements for combination braking systems (hydrostatic & friction brakes); and (6) Increases complexity for manufacturers and users due to the misalignment with other standards around the world. The committee expects it will take several years to write the standard. Voluntary compliance by manufacturers could be applicable in 2018 or 2019.
Iowa Senate Calls for Anhydrous Ammonia Task Force
An anhydrous ammonia task force would be created within the Iowa Department of Agriculture under a bill approved recently by the Iowa Senate. Senate File 2251, which was sent to the House, would charge the task force with finding solutions to the use and regulation of anhydrous ammonia and innovations related to nutrient management. The task force would be required to submit its findings to state officials by January 13, 2017. One of the goals of a nutrient reduction strategy is to improve the quality of surface water.
Heads up! The bill was amended to include a requirement that all new anhydrous ammonia tanks would need heat treat welds, which would add an estimated $100 to $300 to the cost of a tank. The goal of having heat treated weld, is to improve the structural integrity of the tank. Some new tanks currently have heat treated welds and some do not, said State Senator Kevin Kinney.
Draft International Standard for Occupational Safety and Health Open for Comment
The British Standards Institute (BSI) has published the draft international standard (DIS) of ISO 45001 Occupational Health and Safety Management systems - Requirements. This is an occupational health and safety (OH&S) management system standard written with the ultimate aim of replacing Occupational Health and Safety Assessment Series (OHSAS) 18001.
It is available now for comment on the BSI website until April 15th.
Although OHSAS 18001 is widely used both in the UK and internationally, it is not a full international standard. BSI says by working with a far wider range of countries and also the International Labour Organization (ILO), it is hoped that greater harmony will be achieved globally allowing further confidence down the supply chain and ultimately saving lives.
The international committee, which developed ISO 45001, includes experts from over 50 countries and 20 liaison bodies, all with knowledge and practical experience of occupational health and safety issues and the challenges faced. The new standard is based on the core structure and common text developed by the ISO for all of its management system standards (MSS), taking into account the requirements of the current OHSAS 18001, other national standards (including those from the US, China and Canada) and the ILO instruments - OH&S guidelines adopted by hundreds of countries across the world.
According to BSI, ISO 45001 will help provide a single, clear framework for organizations of all types and sizes who wish to improve their OH&S performance and protect those working on their behalf or who may be affected by the organization's activities. This includes any organization beyond that of sole trader - and those organizations working with multiple contractors, multiple sites, volunteers or temporary staff, etc. Following the three month ballot and a comments resolution period, publication of the final standard is anticipated towards the end of 2016.
Accountant's Advice is Privileged
The 2nd Circuit Court of Appeals recently found that a taxpayer did not waive his privilege when he shared documents prepared by his accountant with a group of banks with which he had a common legal interest. Accordingly, the taxpayer did not have to give the documents to the Internal Revenue Service.
Federal Wage and Labor Law Poster Updates
NEW MEXICO
Discrimination (Effective date 'currently') - The notice is significantly expanded, now including enforcement information as well as explicitly stating that sexual harassment is prohibited. No effective date is included in the notice, so it is considered currently effective. Version 3.0 projected availability: The week of March 14th. This is a substantive change and an updated New Mexico poster is required. Click here to order.
WASHINGTON
Unemployment Insurance (Effective date October 2015) - The notice was backdated upon release. Along with cosmetic changes, the time periods for which applicants must report former employers, time spent in the military and whether or not an applicant has had an out of state job, was changed from 2 years to 18 months. The time periods available for filing claims has also been changed from 8-5 to 8-4 with no mention of extended hours during peak times. Version 3.0 projected availability: The week of March 21st. This is a substantive change and an updated Washington poster is required. Click here to order.
PENNSYLVANIA - PHILADELPHIA
Ban the Box (Effective date March 2016) - Philadelphia has passed a "Ban the Box" ordinance which prohibits employers from asking about prospective employees' criminal records. This is a substantive change and the new Philadelphia poster is required. Click here to order.
CALIFORNIA
Pregnancy Discrimination (Effective date April 2016) - California has confirmed that they will be releasing the new Pregnancy Disability Leave, which includes protection from discrimination and harassment. Version 6.0 projected availability: The week of April 11th or sooner, depending upon actual release date of the official notice. Pre-order now for timely delivery. This is a substantive change and an updated California poster is required. Click here to order.
MICHIGAN - REVERSED!
Unemployment Insurance - The information regarding this notice is intended solely for written distribution to be handed to employees recently unemployed. The state is reverting to the old poster, ours is version 4.0, but will accept the erroneous change as compliant. This is a substantive change but no updated Michigan poster is required.
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 Submissions
PSM: Don't Quit Now!
We continue to recommend our clients develop 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. If you haven't already, it's time to send us your 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.
We are very happy to report, that despite the July 2015 surprise announcement, the huge learning curve, the countless hours of work and the mess of legal wrangling, 78% of our clients made the March 31st deadline to have their PSM program developed and their RMP-3 data submitted to us so we can prepare their final submission. An additional 16% of our clients are really close and should be complete within the next ten days. We encourage you to finish your PSM program before you get into spring season.
PSM Lawsuit Update: Just Tell Us Yes or No
Did OSHA overstep their authority on July 22, 2015 when they rescinded the letter of interpretation that originally granted the "retail exemption" to our industry? ARA and TFI recently petitioned the court to dispense with oral arguments and other expensive and time-consuming legal options, asking simply for a "yes" or "no" to this question. Some expect the court could reply as soon as May, but as late as August.
PSM: Why Not Quit?
We are noticing more and more OSHA personnel "checking out" retail agricultural facilities while they are out and about. They appear to want to become more familiar with the size and type of ag retailer operations. This is similar to what occurred when the DOT officers were tasked with enforcing the presence of legible ASME data plates in 2011. They started by checking the facilities out, all the while gathering data to support an organized sweep enforcing the regulation. We anticipate this will happen with PSM, possibly starting when the court rules, or by September 2016, whichever comes first.
Website Maintenance
Steelworkers Support OSHA in PSM Suit
Saying it has more members directly affected by the process safety management standard than any other union, the United Steel Workers (USW) filed a brief with the court in support of OSHA's position in the challenge to the standard brought by ARA, TFI and others. In 1992, OSHA issued an interpretive letter outlining the "50 percent rule," thus exempting retail facilities.
The July 2015 memorandum, according to OSHA, set out to clarify this apparent discrepancy. ARA, TFI and its fellow petitioners claimed in their challenge to the memorandum that it constituted a major change in the standard, removing many businesses that had considered themselves exempted retailers since the 50 percent rule was announced in 1992. ARA and TFI argued the memorandum created a new standard that must undergo an administrative review process before it is enacted.
USW supports OSHA's argument that the retail memorandum does no more than clarify the PSM standard and, therefore, the court has no jurisdiction to rule on its validity. According to the USW brief, the union represents workers in 58 bargaining units that are directly affected by OSHA's interpretation of the PSM standard. "Its members will suffer an injury-in-fact if OSHA's Retail Memorandum is invalidated," the USW said.
USW argues that the Retail Memorandum is a valid "interpretation" rather than a new standard because the document it interprets-the letter that set out the 50 percent rule-wasn't itself subjected to administrative review. "OSHA pulled the fifty percent test out of thin air, citing nothing as support for this definition of retail facilities,'" the union said. Citing Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (U.S. 2015), the USW argued, "If the fifty percent test was a valid interpretation of the PSM standard, then OSHA is permitted to revise or repeal the interpretation and substitute a new or different interpretation, using the same procedures as it did initially."
Watch for your set of 2016 Regulatory Posters!
The 2016 regulatory posters shipped and should have hit your desk sometime in the past week. The delays each year get a little longer and are due to the increase in the regulatory activity that prompts the labels and Safety Data Sheets to be revised. The set of three includes posters with information on DOT shipping descriptions, Worker Protection Standards and Restricted-Use Products. Amber Duke heads up the ProFiles Database and printed materials such as the popular set of posters. Amber can be contacted at 270-926-4600, Ext 213.
Brussels Attack Not Ammonium Nitrate
Separately, we've heard from our affiliates at TFI and ARA that several media sources incorrectly reported that ammonium nitrate was used by the terrorists in the recent attacks in Europe.
Spotlight: It's Time to Register With ResponsibleAg
Almost 2,000 facilities have registered with the ResponsibleAg Certification Program, with 154 facilities already receiving their certification. We encourage you to register your facilities today and support the program. 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. For more information and to register, go to: www.responsibleag.org
Become a ResponsibleAg Auditor or Attend to Learn More....
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. More than 140 people have already participated in the training, with more than 84 choosing to become credentialed by ResponsibleAg. To become a ResponsibleAg auditor, the first step is to attend the training. Registration is open and two classes are offered per year. The next class will be on September 13-16th. Click here to register. This is the only course scheduled for the remainder of 2016, so register soon to reserve your seat.
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.
New 2016 ERGs Coming Soon
Our partners at J.J. Keller & Associates notified us recently the guidebooks will be printed and ready for delivery soon. Until then, the 2012 version of the ERG should be used as the current version of the manual. We pre-ordered a truck load to get the very best pricing and we took orders during the annual compliance visit. Once we receive the new manuals, we will turn them around in less than 48 hours and fill the orders that have been placed throughout the winter. We are happy to announce the prices will remain the same as they were back in 2012: $1.25
License Requirements for Ammonia Nurse Tanks
The Illinois Fertilizer and Chemical Association (IFCA) recently reminded their members that ammonia nurse tanks are required to have license plates in Illinois, and the stickers renewed every two years. This past year, the Illinois Secretary of State (SOS) did not send out renewal notices. Instead, IFCA had their members send in a list of their nurse tank trailers and plate numbers to the SOS office in Springfield to get their renewal stickers. If you DID NOT get your renewal stickers for your nurse tank plates before they expired on December 31st, at this point you can take your nurse tank trailer information and license numbers for the nurse tanks to your local SOS office to get the stickers. There is no late fee at this point, but don't put it off any longer. If you encounter problems at the local SOS office, and are an IFCA member, please call IFCA at 309-827-2774.
Braking Requirements for Ag Equipment Under Review
The American Society of Agricultural & Biological Engineers (ASABE) Machine Systems (MS) recently reviewed the work of a small task force of braking system experts. This group compared the current requirements in ASAE S365.9, which are 15-years-old, to more current braking requirements from regions of the world that have taken into consideration ever-increasing equipment weights and faster towing speeds. The committee reports that S365.9: (1) Has no provision to allow towing of a light-weight ag vehicle without brakes at speeds exceeding 20 mph; (2) Has no distinction between commodity trailers with variable transport loads and implements with fixed transport loads; (3) Does not address how the brake system interfaces between towing vehicle and the towed vehicle; (4) Has no provisions to warn the operator that the brake system has failed; (5) Does not clearly address requirements for combination braking systems (hydrostatic & friction brakes); and (6) Increases complexity for manufacturers and users due to the misalignment with other standards around the world. The committee expects it will take several years to write the standard. Voluntary compliance by manufacturers could be applicable in 2018 or 2019.
Iowa Senate Calls for Anhydrous Ammonia Task Force
An anhydrous ammonia task force would be created within the Iowa Department of Agriculture under a bill approved recently by the Iowa Senate. Senate File 2251, which was sent to the House, would charge the task force with finding solutions to the use and regulation of anhydrous ammonia and innovations related to nutrient management. The task force would be required to submit its findings to state officials by January 13, 2017. One of the goals of a nutrient reduction strategy is to improve the quality of surface water.
Heads up! The bill was amended to include a requirement that all new anhydrous ammonia tanks would need heat treat welds, which would add an estimated $100 to $300 to the cost of a tank. The goal of having heat treated weld, is to improve the structural integrity of the tank. Some new tanks currently have heat treated welds and some do not, said State Senator Kevin Kinney.
Draft International Standard for Occupational Safety and Health Open for Comment
The British Standards Institute (BSI) has published the draft international standard (DIS) of ISO 45001 Occupational Health and Safety Management systems - Requirements. This is an occupational health and safety (OH&S) management system standard written with the ultimate aim of replacing Occupational Health and Safety Assessment Series (OHSAS) 18001.
It is available now for comment on the BSI website until April 15th.
Although OHSAS 18001 is widely used both in the UK and internationally, it is not a full international standard. BSI says by working with a far wider range of countries and also the International Labour Organization (ILO), it is hoped that greater harmony will be achieved globally allowing further confidence down the supply chain and ultimately saving lives.
The international committee, which developed ISO 45001, includes experts from over 50 countries and 20 liaison bodies, all with knowledge and practical experience of occupational health and safety issues and the challenges faced. The new standard is based on the core structure and common text developed by the ISO for all of its management system standards (MSS), taking into account the requirements of the current OHSAS 18001, other national standards (including those from the US, China and Canada) and the ILO instruments - OH&S guidelines adopted by hundreds of countries across the world.
According to BSI, ISO 45001 will help provide a single, clear framework for organizations of all types and sizes who wish to improve their OH&S performance and protect those working on their behalf or who may be affected by the organization's activities. This includes any organization beyond that of sole trader - and those organizations working with multiple contractors, multiple sites, volunteers or temporary staff, etc. Following the three month ballot and a comments resolution period, publication of the final standard is anticipated towards the end of 2016.
Accountant's Advice is Privileged
The 2nd Circuit Court of Appeals recently found that a taxpayer did not waive his privilege when he shared documents prepared by his accountant with a group of banks with which he had a common legal interest. Accordingly, the taxpayer did not have to give the documents to the Internal Revenue Service.
Federal Wage and Labor Law Poster Updates
NEW MEXICO
Discrimination (Effective date 'currently') - The notice is significantly expanded, now including enforcement information as well as explicitly stating that sexual harassment is prohibited. No effective date is included in the notice, so it is considered currently effective. Version 3.0 projected availability: The week of March 14th. This is a substantive change and an updated New Mexico poster is required. Click here to order.
WASHINGTON
Unemployment Insurance (Effective date October 2015) - The notice was backdated upon release. Along with cosmetic changes, the time periods for which applicants must report former employers, time spent in the military and whether or not an applicant has had an out of state job, was changed from 2 years to 18 months. The time periods available for filing claims has also been changed from 8-5 to 8-4 with no mention of extended hours during peak times. Version 3.0 projected availability: The week of March 21st. This is a substantive change and an updated Washington poster is required. Click here to order.
PENNSYLVANIA - PHILADELPHIA
Ban the Box (Effective date March 2016) - Philadelphia has passed a "Ban the Box" ordinance which prohibits employers from asking about prospective employees' criminal records. This is a substantive change and the new Philadelphia poster is required. Click here to order.
CALIFORNIA
Pregnancy Discrimination (Effective date April 2016) - California has confirmed that they will be releasing the new Pregnancy Disability Leave, which includes protection from discrimination and harassment. Version 6.0 projected availability: The week of April 11th or sooner, depending upon actual release date of the official notice. Pre-order now for timely delivery. This is a substantive change and an updated California poster is required. Click here to order.
MICHIGAN - REVERSED!
Unemployment Insurance - The information regarding this notice is intended solely for written distribution to be handed to employees recently unemployed. The state is reverting to the old poster, ours is version 4.0, but will accept the erroneous change as compliant. This is a substantive change but no updated Michigan poster is required.
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.