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Newsletter
Volume 158
December 1, 2016
Season's Greetings!
As we enter into the holiday season, all of us at the Asmark Institute would like to wish you and your families a very Merry Christmas and a safe and prosperous New Year. We appreciate the relationship that has been developed between our organizations over the years and especially the opportunity to have worked with you in 2016!
PSM Guidance: Stay Tuned
We had hoped to be able to provide guidance in this issue of the newsletter to our clients who are awaiting the next steps on the subject of PSM and RMP. OSHA didn't take kindly to the outcome of the September 23rd court decision citing that it could potentially jeopardize the validity of numerous other regulatory actions they have acted on in the past using the same procedures. On the eve of the presidential election, OSHA petitioned the court for a re-hearing on the subject. Notable to the case was the fact that the Supreme Court had upheld OSHA's use of the procedures in a similar case about two years ago. Add to this the new wildcard of the change in administrations and what regulatory actions could be struck down early next year - and frankly it causes everyone's crystal ball to become really fuzzy. If you are in the 60% of our clients that elected to proceed with PSM, then please continue on your journey. If you are in the 40% that is awaiting more information, then please sit tight until we can see how all this wrangling is going to turn out. Click here to review the petition for the re-hearing. As always, we will help regardless of the outcome.
Annual Compliance Visit Reminder: December 30, 2016
As a friendly reminder, please make note of the deadline to have completed your annual compliance visit.
New Breakaway High Visibility Vests Available on the Website
Thanks to a participant in one of the recent OSHA AG-30 courses, we have added a "breakaway" option of the Class II high visibility vests. Their comment that made perfect sense was while the vests increased the visibility of the worker, the baggy vests could potentially become wrapped in rotating equipment and could harm a worker. The new vests sport a 5-breakaway feature and are available in lime mesh with 2" silver reflective tape and a Velcro front. Sizes from medium to 5-XL are now available for $6.00/each.
New OSHA AG-30 Course - Spring Courses Posted
Understanding OSHA's requirements will save your company money - but more importantly, it will reduce the number of injuries and it may even save lives. This highly successful training has been developed specifically for agribusiness and is designed for facility managers or assistant managers, safety and health coordinators, EHS staff and personnel with responsibilities for safety and health at the facility. We encourage at least one person per facility receive this training. Sign up today to reserve the class of your choice. Click here for more information or to register.
It's Time to Register With ResponsibleAg
More than 2,200 facilities have registered with the ResponsibleAg Certification Program, with 403 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
Top 25 List of ResponsibleAg Audit Findings
While most would expect the cost to address the issues found in a ResponsibleAg audit to be potentially overwhelming, the truth of the matter is quite different. The typical facility has reported that it costs less than $3,000 to address the issues found in the audit. Signage, fire extinguishers, electrical cords, written programs, training and other relatively small "things" that can be addressed quickly are the most common issues found. With more than 1,200 audits now completed, the Top 25 list looks like this:
  1. Lockout/Tagout, Annual Review of Program
  2. Spare Fuses, DOT
  3. Forklift, PIT Inspection & Maintenance
  4. Training, Oxygen & Acetylene
  5. Markings, NFPA 704 Markings on Fuel Tanks
  6. Safety Shower/Eye Wash Maintenance
  7. Workplace Hazard Assessment
  8. Lockout/Tagout Program
  9. Gas, Portable Containers
  10. SDS, Available Upon Request Sign
  11. Hearing Conservation Program
  12. Guarding and Clearances, Grinders
  13. Bloodborne Pathogens Program
  14. Training, Drug & Alcohol for Supervisors
  15. Labeling, Fuel Tanks
  16. Sign, "Not an EXIT"
  17. Confined Space Entry Annual Review
  18. Confined Spaces Labeled
  19. Sign, Slow Moving Vehicle (SMV)
  20. Confined Spaces Labeled
  21. Training, Electrical Awareness (All Employees)
  22. Security Vulnerability Assessment
  23. Electrical, Ground-Fault Circuit Interrupter
  24. Backflow Prevention, Inspection of RPZ Valve
  25. Labeling of Containers, Hazard Communication
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 160 people have already participated in the training, with more than 89 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. Reserve your space in the February 2017 class. Click here to register.
OSHA Final Rule On Walking & Working Surfaces, Personal Fall Protection Systems
The new final rule released recently by OSHA updates its walking-working surfaces standards and adjusts what fall protection system employers may utilize. The new rule will go into effect January 17, 2017 and is expected to affect around 112 million workers.
The final rule was designed to increase consistency between general industry and construction standards and to update requirements to reflect advancement in technology. The rule also adds training and inspection requirements and is 1,225 pages in length.
Significant changes are included for fall protection systems, including eliminating the mandate for guardrails as a primary fall protection method. More options are now classified as accepted fall protection and employers will be able to use "non-conventional" fall protection when a situation calls for it, such as working on low-slope roofs.
Some provisions of the rule that do not take effect immediately:
  • Ensuring exposed workers are trained on fall hazards (6 months),
  • Ensuring workers who use equipment covered by the final rule are trained (6 months),
  • Inspecting and certifying permanent anchorages for rope descent systems (1 year),
  • Installing personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor advertising structures (2 years),
  • Ensuring existing fixed ladders over 24 feet, including those on outdoor advertising structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system (2 years) and
  • Replacing cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet (20 years).
Click here to access the final rule.
New OSHA Recordkeeping Rules
OSHA has twice delayed enforcement of the so-called "anti-retaliation" provisions, which prohibit employers from discouraging workers from reporting an injury or illness. The final rule promotes an employee's right to report injuries and illnesses without fear of retaliation, and clarifies that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and must not discourage employees from reporting. Several trade associations and employers challenged the anti-retaliation provisions by arguing that OSHA did not have the authority to regulate post-accident drug testing and safety incentive programs by issuing citations alleging that employees had experienced retaliation. However, the U.S. District Court for the Northern District of Texas denied that challenge.
OSHA has identified post-accident drug-testing and safety-incentive plans as programs that may result in impermissible retaliation against employees who report injuries. Employers should review their post-accident drug-testing policies to evaluate compliance with OSHA's policy and interpretation of the regulation.
Under the new rule, all establishments with 250 or more employees in industries covered by the recordkeeping regulation must electronically submit to OSHA injury and illness information from OSHA Forms 300, 300A, and 301. Establishments between 20-249 employees in certain industries, including "warehousing and storage" must electronically submit information from OSHA Form 300A only.
What does the rule require?
The new rule, which takes effect January 1, 2017, requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. Analysis of this data will enable OSHA to use its enforcement and compliance assistance resources more efficiently. Some of the data will also be posted to the OSHA website. The amount of data submitted will vary depending on the size of company and type of industry.
How will electronic submission work?
OSHA will provide a secure website that offers three options for data submission. First, users will be able to manually enter data into a webform. Second, users will be able to upload a CSV file to process single or multiple establishments at the same time. Last, users of automated recordkeeping systems will have the ability to transmit data electronically via an API (application programming interface). The site is scheduled to go live in February 2017.
Anti-retaliation protections
The rule also prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster. It also clarifies the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. These provisions become effective August 10, 2016, but OSHA has delayed their enforcement until December 1, 2016.
Compliance schedule
The new reporting requirements will be phased in over two years: Establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2. Establishments with 20-249 employees in certain high-risk industries must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2. OSHA State Plan states must adopt requirements that are substantially identical to the requirements in this final rule within 6 months after publication of this final rule.
EPA Again Recommends Chlorpyrifos Be Pulled from Market
In January EPA proposed a rule to revoke all tolerances for chlorpyrifos, also known by its trade names as Dursban, Lorsban and Scout among many others. In July, the National Agricultural Aviation Association (NAAA) filed an amici curiae brief to the U.S. Court of Appeals for the Ninth Circuit in an attempt to keep the chemical on the market. Now, EPA has updated its scientific assessment for chlorpyrifos but continues to recommend that it be pulled from the market.
The EPA is under court order to decide whether or not it will revoke tolerances for the insecticide by March 21, 2017 and is accepting comments on its revised analysis until early January. NAAA says it will continue to stress that chlorpyrifos is the leading insecticide to control soybean aphids, armyworm in alfalfa and corn rootworm among other pests.
Moreover, NAAA will highlight that the recommendation to pull chlorpyrifos is based on two studies, performed by Columbia University, which have not been peer reviewed, are based on unknown data and contradict over 40 years of established science on the insecticide. NAAA strongly believes EPA should use sound science to make decisions and hopes the agency will allow the chemical to remain on the market until it has had adequate time to review the Columbia study.
Lesson Yet to Learn About Removing Machine Guards
An Ohio business faces nearly $215,000 in penalties after disabling safety devices, exposing workers to amputation hazards. A safety complaint filed against the company resulted in an OSHA inspection. Inspectors found the company exposed workers to amputations and other serious injuries by disabling safety devices. Other violations included failing to: install machine guards on equipment; remove defective forklifts from service; and cover exposed electrical connections. The company was cited for 10 safety violations and proposed penalties of nearly $215,000.
Court Blocks Obama's New Overtime Regulation
On November 22, 2016, Judge Amos L. Mazzant of the U.S. District Court for the Eastern District of Texas put a temporary block on the implementation of federal overtime rules, stating that they are likely unlawful. The new rules that were set to take effect on December 1st, are blocked indefinitely by this nationwide injunction. The order comes in response to a lawsuit filed in September by 21 states challenging the validity of the new federal regulations, which were proposed by the U.S. Department of Labor. Under the proposed regulations, the minimum salary threshold below which overtime would be required, would be more than doubled to $47,892, up from $23,660 and would then automatically increase in subsequent years. The 21 state Attorney Generals argued that the U.S. Department of Labor lacked legal authority from Congress to impose the dramatic increase and the court agreed. The injunction blocks the new overtime regulation nationwide. The injunction means businesses and nonprofits will not be required to meet the December 1 deadline for complying with the new overtime rules.
Employers Must Start Using New I-9 Form by January 22
The United States Citizenship and Immigration Services (USCIS) announced on September 12th that employers will need to begin using it on or before January 22, 2017.
The agency released the new form on November 14, 2016 with an expiration date of August 31, 2019. The new form serves the same purpose as the current form, to verify employment eligibility and asks for the same information. However, employers should be ready for some enhancements and should know how the old form figures into their I-9 practices.
Q. What changes are to come with the new Form I-9?
A. The proposed new form (available in a pdf) is said to be "smart," as it attempts to prevent employees and employers alike from making errors on the form. The form includes features like the validation of data (ensuring the correct number of digits/type of data has been entered) and on-screen help text to explain the requirements of various fields.
Q. Must we complete new forms for all employees when the new I-9 is issued?
A. Employers must use the new form for newly hired employees beginning on January 22, 2017 (again, employers may begin using the new form as soon as it is released). They should not automatically complete new I-9s for employees whose forms were completed before use of the new form was required.
Q. How do we handle updates to employees' documentation when the original Form I-9 is an older version?
A. Updates to the Form I-9 should be made on a current version of the Form I-9. If an employee's documentation requires re-verification or revision, the employer should use a current form for those updates and attach the new form to the employee's original I-9.
Between the new form's release and January 21, re-verifications and revisions may be made on the form that expired on March 31, 2016 or the newly released form. As of January 22nd, however, employers must use the new form for re-verifications and revisions. Click here for more information and to access the new form.
Big Changes About to Happen for Hazardous Waste Generators
As the Resource Conservation and Recovery Act (RCRA) turns 40, EPA is making major changes to the hazardous waste regulations, especially as they apply to hazardous waste generators. On October 28th, EPA head Gina McCarthy signed the Hazardous Waste Generator Improvements Rule.
Until now, the regulations for the three hazardous waste generator categories had been spread throughout 40 CFR Parts 260-280. The new rule consolidates the regulations as they apply to generators. The final rule includes over 60 regulatory changes. Major revisions include:
  • Renaming Conditionally Exempt Small Quantity Generators (CESQGs) to Very Small Quantity Generators (VSQGs).
  • Allowing VSQGs to send hazardous waste to a Large Quantity Generator (LQG) that is under the control of the same person.
  • Removing the requirement that a VSQG or Small Quantity Generator (SQG) move to a higher generator category because of an episodic event, provided the waste is properly managed.
  • Updating the emergency response and contingency planning provisions for SQGs and LQGs to include local emergency planners among the organizations with which a generator may make response arrangements.
  • Revising the labeling and marking of containers and tanks to clearly indicate the hazards of the hazardous waste contained inside.
The final rule will become effective at the federal level six months after publication in the Federal Register. Authorized states must adopt the provisions in the regulation that are more stringent than the current regulations.
Drug and Alcohol Clearinghouse Rule Leaves OMB
The Federal Motor Carrier Safety Administration (FMCSA) received its final rule for a DOT drug and alcohol clearinghouse back from the White House Office of Management and Budget (OMB) on October 31, 2016. The rule, "Commercial Drivers' License Drug and Alcohol Clearinghouse (MAP-21)," has been under OMB's review since May 20, 2016. The rulemaking was the result of a Congressional mandate.
Under the proposed rule, FMCSA-regulated truck and bus companies, Medical Review Officers, Substance Abuse Professionals and private, third-party USDOT drug and alcohol testing laboratories would be required to record information about a driver who fails a drug and/or alcohol test; refuses to submit to a drug and/or alcohol test; and successfully completes a substance abuse program and is legally qualified to return to duty.
Private, third-party USDOT drug and alcohol testing laboratories also would be required to report summary information annually. This information would be used to help identify companies that do not have a testing program.
Electronic Logging Rule Survives Court Challenge
A three-judge panel found no merit to plaintiff's arguments, describing the electronic logging device (ELD) rule as "reasonable." A federal appellate court in Chicago has struck down a legal challenge that was seeking to stop the ELD mandate in its tracks. The court's 28-page decision clears the way for the rule to go into full effect. Barring a successful appeal of the decision, about 3.5 million interstate truck and bus drivers will need to begin using ELDs in place of paper logs starting on December 18, 2017.
The legal challenge was brought by the Owner-Operator Independent Drivers Association (OOIDA) on behalf of two drivers who may have had reason to expect a different outcome, since the same court sided with OOIDA in 2011 when it vacated an earlier version of the electronic logging rule. This time around, however, a three-judge panel concluded that none of OOIDA's five arguments held merit. The federal appeals court is the second-highest court in the land. The plaintiffs could still appeal the decision to a full panel of judges at the same Chicago court, or could appeal to the U.S. Supreme Court.
Employers Face New January 31st W-2 Filing Deadline
The Protecting Americans from Tax Hikes (PATH) Act requires employers to file their copies of Form W-2, submitted to the Social Security Administration, by January 31st. Previously, employers had until the end of February, or the end of March, if filing electronically. The new January filing deadline also applies to certain Forms 1099-MISC reporting non-employee compensation such as payments to independent contractors. Only one 30-day extension to file Form W-2 is available and this extension is not automatic. If an extension is necessary, a Form 8809 Application for Extension of Time to File Information Returns must be completed as soon as you know an extension is necessary, but by January 31st. The new, accelerated deadline is aimed at making it easier for the IRS to detect and prevent refund fraud.
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.
Season's Greetings!
As we enter into the holiday season, all of us at the Asmark Institute would like to wish you and your families a very Merry Christmas and a safe and prosperous New Year. We appreciate the relationship that has been developed between our organizations over the years and especially the opportunity to have worked with you in 2016!
PSM Guidance: Stay Tuned
We had hoped to be able to provide guidance in this issue of the newsletter to our clients who are awaiting the next steps on the subject of PSM and RMP. OSHA didn't take kindly to the outcome of the September 23rd court decision citing that it could potentially jeopardize the validity of numerous other regulatory actions they have acted on in the past using the same procedures. On the eve of the presidential election, OSHA petitioned the court for a re-hearing on the subject. Notable to the case was the fact that the Supreme Court had upheld OSHA's use of the procedures in a similar case about two years ago. Add to this the new wildcard of the change in administrations and what regulatory actions could be struck down early next year - and frankly it causes everyone's crystal ball to become really fuzzy. If you are in the 60% of our clients that elected to proceed with PSM, then please continue on your journey. If you are in the 40% that is awaiting more information, then please sit tight until we can see how all this wrangling is going to turn out. Click here to review the petition for the re-hearing. As always, we will help regardless of the outcome.
Annual Compliance Visit Reminder: December 30, 2016
As a friendly reminder, please make note of the deadline to have completed your annual compliance visit.
New Breakaway High Visibility Vests Available on the Website
Thanks to a participant in one of the recent OSHA AG-30 courses, we have added a "breakaway" option of the Class II high visibility vests. Their comment that made perfect sense was while the vests increased the visibility of the worker, the baggy vests could potentially become wrapped in rotating equipment and could harm a worker. The new vests sport a 5-breakaway feature and are available in lime mesh with 2" silver reflective tape and a Velcro front. Sizes from medium to 5-XL are now available for $6.00/each.
New OSHA AG-30 Course - Spring Courses Posted
Understanding OSHA's requirements will save your company money - but more importantly, it will reduce the number of injuries and it may even save lives. This highly successful training has been developed specifically for agribusiness and is designed for facility managers or assistant managers, safety and health coordinators, EHS staff and personnel with responsibilities for safety and health at the facility. We encourage at least one person per facility receive this training. Sign up today to reserve the class of your choice. Click here for more information or to register.
It's Time to Register With ResponsibleAg
More than 2,200 facilities have registered with the ResponsibleAg Certification Program, with 403 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
Top 25 List of ResponsibleAg Audit Findings
While most would expect the cost to address the issues found in a ResponsibleAg audit to be potentially overwhelming, the truth of the matter is quite different. The typical facility has reported that it costs less than $3,000 to address the issues found in the audit. Signage, fire extinguishers, electrical cords, written programs, training and other relatively small "things" that can be addressed quickly are the most common issues found. With more than 1,200 audits now completed, the Top 25 list looks like this:
  1. Lockout/Tagout, Annual Review of Program
  2. Spare Fuses, DOT
  3. Forklift, PIT Inspection & Maintenance
  4. Training, Oxygen & Acetylene
  5. Markings, NFPA 704 Markings on Fuel Tanks
  6. Safety Shower/Eye Wash Maintenance
  7. Workplace Hazard Assessment
  8. Lockout/Tagout Program
  9. Gas, Portable Containers
  10. SDS, Available Upon Request Sign
  11. Hearing Conservation Program
  12. Guarding and Clearances, Grinders
  13. Bloodborne Pathogens Program
  14. Training, Drug & Alcohol for Supervisors
  15. Labeling, Fuel Tanks
  16. Sign, "Not an EXIT"
  17. Confined Space Entry Annual Review
  18. Confined Spaces Labeled
  19. Sign, Slow Moving Vehicle (SMV)
  20. Confined Spaces Labeled
  21. Training, Electrical Awareness (All Employees)
  22. Security Vulnerability Assessment
  23. Electrical, Ground-Fault Circuit Interrupter
  24. Backflow Prevention, Inspection of RPZ Valve
  25. Labeling of Containers, Hazard Communication
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 160 people have already participated in the training, with more than 89 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. Reserve your space in the February 2017 class. Click here to register.
OSHA Final Rule On Walking & Working Surfaces, Personal Fall Protection Systems
The new final rule released recently by OSHA updates its walking-working surfaces standards and adjusts what fall protection system employers may utilize. The new rule will go into effect January 17, 2017 and is expected to affect around 112 million workers.
The final rule was designed to increase consistency between general industry and construction standards and to update requirements to reflect advancement in technology. The rule also adds training and inspection requirements and is 1,225 pages in length.
Significant changes are included for fall protection systems, including eliminating the mandate for guardrails as a primary fall protection method. More options are now classified as accepted fall protection and employers will be able to use "non-conventional" fall protection when a situation calls for it, such as working on low-slope roofs.
Some provisions of the rule that do not take effect immediately:
  • Ensuring exposed workers are trained on fall hazards (6 months),
  • Ensuring workers who use equipment covered by the final rule are trained (6 months),
  • Inspecting and certifying permanent anchorages for rope descent systems (1 year),
  • Installing personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor advertising structures (2 years),
  • Ensuring existing fixed ladders over 24 feet, including those on outdoor advertising structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system (2 years) and
  • Replacing cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet (20 years).
Click here to access the final rule.
New OSHA Recordkeeping Rules
OSHA has twice delayed enforcement of the so-called "anti-retaliation" provisions, which prohibit employers from discouraging workers from reporting an injury or illness. The final rule promotes an employee's right to report injuries and illnesses without fear of retaliation, and clarifies that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and must not discourage employees from reporting. Several trade associations and employers challenged the anti-retaliation provisions by arguing that OSHA did not have the authority to regulate post-accident drug testing and safety incentive programs by issuing citations alleging that employees had experienced retaliation. However, the U.S. District Court for the Northern District of Texas denied that challenge.
OSHA has identified post-accident drug-testing and safety-incentive plans as programs that may result in impermissible retaliation against employees who report injuries. Employers should review their post-accident drug-testing policies to evaluate compliance with OSHA's policy and interpretation of the regulation.
Under the new rule, all establishments with 250 or more employees in industries covered by the recordkeeping regulation must electronically submit to OSHA injury and illness information from OSHA Forms 300, 300A, and 301. Establishments between 20-249 employees in certain industries, including "warehousing and storage" must electronically submit information from OSHA Form 300A only.
What does the rule require?
The new rule, which takes effect January 1, 2017, requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. Analysis of this data will enable OSHA to use its enforcement and compliance assistance resources more efficiently. Some of the data will also be posted to the OSHA website. The amount of data submitted will vary depending on the size of company and type of industry.
How will electronic submission work?
OSHA will provide a secure website that offers three options for data submission. First, users will be able to manually enter data into a webform. Second, users will be able to upload a CSV file to process single or multiple establishments at the same time. Last, users of automated recordkeeping systems will have the ability to transmit data electronically via an API (application programming interface). The site is scheduled to go live in February 2017.
Anti-retaliation protections
The rule also prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster. It also clarifies the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. These provisions become effective August 10, 2016, but OSHA has delayed their enforcement until December 1, 2016.
Compliance schedule
The new reporting requirements will be phased in over two years: Establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2. Establishments with 20-249 employees in certain high-risk industries must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2. OSHA State Plan states must adopt requirements that are substantially identical to the requirements in this final rule within 6 months after publication of this final rule.
EPA Again Recommends Chlorpyrifos Be Pulled from Market
In January EPA proposed a rule to revoke all tolerances for chlorpyrifos, also known by its trade names as Dursban, Lorsban and Scout among many others. In July, the National Agricultural Aviation Association (NAAA) filed an amici curiae brief to the U.S. Court of Appeals for the Ninth Circuit in an attempt to keep the chemical on the market. Now, EPA has updated its scientific assessment for chlorpyrifos but continues to recommend that it be pulled from the market.
The EPA is under court order to decide whether or not it will revoke tolerances for the insecticide by March 21, 2017 and is accepting comments on its revised analysis until early January. NAAA says it will continue to stress that chlorpyrifos is the leading insecticide to control soybean aphids, armyworm in alfalfa and corn rootworm among other pests.
Moreover, NAAA will highlight that the recommendation to pull chlorpyrifos is based on two studies, performed by Columbia University, which have not been peer reviewed, are based on unknown data and contradict over 40 years of established science on the insecticide. NAAA strongly believes EPA should use sound science to make decisions and hopes the agency will allow the chemical to remain on the market until it has had adequate time to review the Columbia study.
Lesson Yet to Learn About Removing Machine Guards
An Ohio business faces nearly $215,000 in penalties after disabling safety devices, exposing workers to amputation hazards. A safety complaint filed against the company resulted in an OSHA inspection. Inspectors found the company exposed workers to amputations and other serious injuries by disabling safety devices. Other violations included failing to: install machine guards on equipment; remove defective forklifts from service; and cover exposed electrical connections. The company was cited for 10 safety violations and proposed penalties of nearly $215,000.
Court Blocks Obama's New Overtime Regulation
On November 22, 2016, Judge Amos L. Mazzant of the U.S. District Court for the Eastern District of Texas put a temporary block on the implementation of federal overtime rules, stating that they are likely unlawful. The new rules that were set to take effect on December 1st, are blocked indefinitely by this nationwide injunction. The order comes in response to a lawsuit filed in September by 21 states challenging the validity of the new federal regulations, which were proposed by the U.S. Department of Labor. Under the proposed regulations, the minimum salary threshold below which overtime would be required, would be more than doubled to $47,892, up from $23,660 and would then automatically increase in subsequent years. The 21 state Attorney Generals argued that the U.S. Department of Labor lacked legal authority from Congress to impose the dramatic increase and the court agreed. The injunction blocks the new overtime regulation nationwide. The injunction means businesses and nonprofits will not be required to meet the December 1 deadline for complying with the new overtime rules.
Employers Must Start Using New I-9 Form by January 22
The United States Citizenship and Immigration Services (USCIS) announced on September 12th that employers will need to begin using it on or before January 22, 2017.
The agency released the new form on November 14, 2016 with an expiration date of August 31, 2019. The new form serves the same purpose as the current form, to verify employment eligibility and asks for the same information. However, employers should be ready for some enhancements and should know how the old form figures into their I-9 practices.
Q. What changes are to come with the new Form I-9?
A. The proposed new form (available in a pdf) is said to be "smart," as it attempts to prevent employees and employers alike from making errors on the form. The form includes features like the validation of data (ensuring the correct number of digits/type of data has been entered) and on-screen help text to explain the requirements of various fields.
Q. Must we complete new forms for all employees when the new I-9 is issued?
A. Employers must use the new form for newly hired employees beginning on January 22, 2017 (again, employers may begin using the new form as soon as it is released). They should not automatically complete new I-9s for employees whose forms were completed before use of the new form was required.
Q. How do we handle updates to employees' documentation when the original Form I-9 is an older version?
A. Updates to the Form I-9 should be made on a current version of the Form I-9. If an employee's documentation requires re-verification or revision, the employer should use a current form for those updates and attach the new form to the employee's original I-9.
Between the new form's release and January 21, re-verifications and revisions may be made on the form that expired on March 31, 2016 or the newly released form. As of January 22nd, however, employers must use the new form for re-verifications and revisions. Click here for more information and to access the new form.
Big Changes About to Happen for Hazardous Waste Generators
As the Resource Conservation and Recovery Act (RCRA) turns 40, EPA is making major changes to the hazardous waste regulations, especially as they apply to hazardous waste generators. On October 28th, EPA head Gina McCarthy signed the Hazardous Waste Generator Improvements Rule.
Until now, the regulations for the three hazardous waste generator categories had been spread throughout 40 CFR Parts 260-280. The new rule consolidates the regulations as they apply to generators. The final rule includes over 60 regulatory changes. Major revisions include:
  • Renaming Conditionally Exempt Small Quantity Generators (CESQGs) to Very Small Quantity Generators (VSQGs).
  • Allowing VSQGs to send hazardous waste to a Large Quantity Generator (LQG) that is under the control of the same person.
  • Removing the requirement that a VSQG or Small Quantity Generator (SQG) move to a higher generator category because of an episodic event, provided the waste is properly managed.
  • Updating the emergency response and contingency planning provisions for SQGs and LQGs to include local emergency planners among the organizations with which a generator may make response arrangements.
  • Revising the labeling and marking of containers and tanks to clearly indicate the hazards of the hazardous waste contained inside.
The final rule will become effective at the federal level six months after publication in the Federal Register. Authorized states must adopt the provisions in the regulation that are more stringent than the current regulations.
Drug and Alcohol Clearinghouse Rule Leaves OMB
The Federal Motor Carrier Safety Administration (FMCSA) received its final rule for a DOT drug and alcohol clearinghouse back from the White House Office of Management and Budget (OMB) on October 31, 2016. The rule, "Commercial Drivers' License Drug and Alcohol Clearinghouse (MAP-21)," has been under OMB's review since May 20, 2016. The rulemaking was the result of a Congressional mandate.
Under the proposed rule, FMCSA-regulated truck and bus companies, Medical Review Officers, Substance Abuse Professionals and private, third-party USDOT drug and alcohol testing laboratories would be required to record information about a driver who fails a drug and/or alcohol test; refuses to submit to a drug and/or alcohol test; and successfully completes a substance abuse program and is legally qualified to return to duty.
Private, third-party USDOT drug and alcohol testing laboratories also would be required to report summary information annually. This information would be used to help identify companies that do not have a testing program.
Electronic Logging Rule Survives Court Challenge
A three-judge panel found no merit to plaintiff's arguments, describing the electronic logging device (ELD) rule as "reasonable." A federal appellate court in Chicago has struck down a legal challenge that was seeking to stop the ELD mandate in its tracks. The court's 28-page decision clears the way for the rule to go into full effect. Barring a successful appeal of the decision, about 3.5 million interstate truck and bus drivers will need to begin using ELDs in place of paper logs starting on December 18, 2017.
The legal challenge was brought by the Owner-Operator Independent Drivers Association (OOIDA) on behalf of two drivers who may have had reason to expect a different outcome, since the same court sided with OOIDA in 2011 when it vacated an earlier version of the electronic logging rule. This time around, however, a three-judge panel concluded that none of OOIDA's five arguments held merit. The federal appeals court is the second-highest court in the land. The plaintiffs could still appeal the decision to a full panel of judges at the same Chicago court, or could appeal to the U.S. Supreme Court.
Employers Face New January 31st W-2 Filing Deadline
The Protecting Americans from Tax Hikes (PATH) Act requires employers to file their copies of Form W-2, submitted to the Social Security Administration, by January 31st. Previously, employers had until the end of February, or the end of March, if filing electronically. The new January filing deadline also applies to certain Forms 1099-MISC reporting non-employee compensation such as payments to independent contractors. Only one 30-day extension to file Form W-2 is available and this extension is not automatic. If an extension is necessary, a Form 8809 Application for Extension of Time to File Information Returns must be completed as soon as you know an extension is necessary, but by January 31st. The new, accelerated deadline is aimed at making it easier for the IRS to detect and prevent refund fraud.
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.