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Newsletter
Volume 160
February 1, 2017
Getting Down to the Brass Tacks
Amidst all the political wrangling of transitioning to the Trump Administration, there is little known for sure as to how things will play out. I think most will agree there is a lot of hope! This prompts us to "get down to the brass tacks" of the matter and speak to something that we know and understand. No matter whether President Trump is successful or not, there are underlying factors that will permit little change from what has become the norm in the world we live and work. Going back to the 19th century, the practice of using brass tacks to spell out the initials of the deceased person on the top of their coffin became a popular phrase to underscore the basic facts of a situation. The brass tacks of our current situation is that over the past 24 years of three different administrations, society has become substantially more litigious, an effect that cannot be repealed, walked-back or stopped with any Executive Order.
No one complies with the government regulations simply because the government says they have to. Liability, and the desire to control it, is what drives risk management and ultimately culture. The strong drive to prevent liability can be seen in a variety of examples. If you've ever had to go to an employee's home to tell their spouse that their loved one won't be coming home again, your thought process is forever changed from "compliance" to "risk management" and beyond to improving the culture. If your life savings is invested in the fertilizer plant you have built over the years, your main interest isn't compliance with the regulations but moreover the threat of losing it all. Your employees are the most important asset you have and every precaution should be taken to care for them - irregardless of whether a government regulation requires it or not. Regulatory fines are not what motivate most people to do the right thing. As an organization with an extensive history in monitoring risk management issues, we welcome the addition of any measurable level of commonsense back into the regulatory environment in the coming years. The brass tacks of the matter is do the right thing and stay away from both the government and the lawyers.
New Course Planned for Beginning Applicators
The Asmark Institute and AGCO Corporation announced they are collaborating to offer a new training program dedicated to educating and developing custom applicators of crop protection products and plant nutrients. The Applicator Training Course will launch on June 12th and provide a comprehensive program of professional training to newly hired applicators and those with up to five years of experience in liquid and dry application. The course will be delivered at a specially designed training center in Bloomington, Illinois.
"As new crop production products are introduced and agricultural equipment technology advances, the role of custom applicators becomes more important and more complex," explains Richard Kohnen, Director, Tactical Marketing for AGCO's application division. "Our retail customers have expressed their challenges with high turnover of applicators and the inefficiency of training new applicators each year. Working with Asmark Institute to develop the course curriculum and offer applicator training will help alleviate these challenges and produce the next generation of professional applicators."
The Applicator Training Course is designed to immerse participants in practical learning experiences that range from basic math and measurements for proper agrichemical mixtures, to hands-on training in the safe operation of a variety of application equipment used in the industry. Fundamentals of machine maintenance, the importance of product labels, customer service and the overall importance of the applicator's role in agricultural production will be detailed. The course curriculum is built on extensive feedback AGCO and the Asmark Institute have gathered from ag retailers and industry partners. Each course will consist of 3-1/2 days of training with the first course expected to launch on June 13, 2017. Online registration for the Applicator Training Course is slated to begin April 1, 2017, on the Asmark Institute website.
AGCO and the Asmark Institute have long histories of supporting the needs of agricultural retailers. AGCO has been designing, developing and providing the latest in application equipment and technology since its purchase of Ag-Chem Equipment Co. Inc., in 2001, a legacy which began in the 1960s. The company has supported and recognized the industry's top professionals through the AGCO Operator of the Year Award program since 2005.
PSM Guidance
PSM remains high on the list of OSHA's planned activities and there is more than a touch of high emotion involved given how the issue has turned out. The topic of PSM was well on its way to being applied to retail farm centers well before the tragedy at West, Texas occurred. West Fertilizer became a convenient vehicle as seen by some in OSHA to help advance the issue. Based on this knowledge we offer the following guidance by category:
  • Facilities that have already elected to proceed with PSM: If you are in the 60% of our clients that elected to proceed with PSM then please continue on your journey - knowing that when the auditor (OSHA or EPA) visits, they will expect to see compliance with the full program. This includes a current Program 3 RMP and all documentation associated with PSM.
  • Facilities that have waited to transition to PSM: We recommend remaining at the Program 2 level of RMP until required by OSHA and/or EPA to upgrade to the Program 3. While PSM is currently not required for a Program level 2 RMP, we advise facilities to continue to take these following actions:
    • Complete any mechanical integrity upgrades needed to bring your facility current.
    • Continue to keep your P&ID drawing current.
    • Continue to mark your valves with numbers.
    • Continue to keep your written operating procedures current with numbered valves.
  • Many of these activities were started in anticipation of complying with PSM. When PSM is actually required someday, having these requirements already completed and current will significantly reduce your effort, plus it has been shown completing these processes have had an overwhelmingly positive effect on those involved.
Boss Gets Downgraded - CDL Drivers Take Heed!
As the saying goes, the early bird gets the worm .... For CDL drivers, it's a Federal DOT regulation to send a current copy of the medical examiner's certificate to the state. We at the Asmark Institute have seen the consequence first hand of failing to send the information to them at least 7-14 days before your medical expires. Our boss, Allen Summers, had a medical certificate expiring December 30, 2016. His new medical was sent to the state on December 27th, (someone needs to talk to him about waiting till the last minute) but due to the holidays and general delay of the processing time at the state level, his medical was not entered until January 5, 2017. Thinking he was footloose and fancy free, he continued to drive until he received a letter from the state explaining he was downgraded. To avoid the hassle of not being qualified to drive, ensure you schedule your medical examinations early and send a current copy of your updated medical certificate to the state as soon as possible. Some states have websites to help you verify the current status of your self-certification and medical status. Click here to check the participating states.
Tennessee Farmers Cooperative's Feed Mill at LaVergne Recognized
The facility and team have been named the Commercial Dry Livestock Feed Category Winner in the 2016 Feed Facility of the Year competition, a national contest conducted by the American Feed Industry Association. Bobby Brown, manager of the operation, has shown an outstanding dedication to quality feed production, safety and efficiency in operation. According to Brown, the overall average employee seniority level is 16 years, and with that comes a wealth of experience and the ability to be observant of issues and solutions. In regard to safety, Brown said the focus is on documentation and training. Safety training sessions are held each month, as well as task-specific training, food safety and biosecurity training and new-hire training. The company has a safety incentive program where quarterly incentives are given to each employee who works accident-free and with no unsafe act noted during a quarter. An annual incentive is given to each employee who worked all year without an injury or with no unsafe act noted. Our congratulations go out to Bobby and his team for this well-deserved recognition!
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 and/or a Zip File 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 proof 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. New for 2017, we will utilize the new CDX system to electronically file all reports. We have worked closely with U.S. EPA to help develop this system over the past two years.
Reminder: Time to Post Your 300A
It's time to complete your 2016 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.
Note: Beginning this year, new electronic reporting requirements have been put in-place for companies of certain sizes. 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.
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.
It's Time to Register With ResponsibleAg
More than 2,300 facilities have registered with the ResponsibleAg Certification Program, with 557 facilities already receiving their certification. We encourage you to register your facilities today! For more information and to register, go to: www.responsibleag.org
Become a ResponsibleAg Auditor or Attend to Learn More....
Several organizations 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 91 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 February 2017 class is full so reserve your seat in the upcoming September class now. Click here to register.
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.
Fuel Dealers Find Their NAICS Code Changed
The industry we call the fuel dealers and comprised of establishments primarily engaged in retailing heating oil, liquefied petroleum (LP) gas, and other fuels via direct selling recently are learning their NAICS code has changed from 454312, which is no longer valid to the new code: 454310. We first learned of the change in researching the state-specific requirements for reporting this year's SARA.
New OSHA Ag-30 Course - 2017 Summer 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.
EPA Set to Publish New Updated RMP Rules
On December 21st, EPA released a pre-publication copy of the Risk Management Program (RMP) final rule. EPA's release stems from their initial July 2014 Request For Information (RFI) back in the wake of the West, Texas tragedy. The rule was published in the Federal Register on January 13, 2017 and was set to become effective 60 days following publication in the Federal Register or March 13th. The Trump Administration has halted all new rules from going into effect until they have time to research them. Their action includes these new RMP updated rules. The Fertilizer Institute and others are advocating for the withdrawal altogether of the rule through a petition under the Congressional Review Act. Congress is expected to move to withdraw a number of "midnight" Obama Administration rules over the next several weeks using this tool.
I Guess You Could Say They Were "Trumped"
As one of the first acts signed in President Trump's Administration, a memorandum on January 20, 2017 mandating that all regulations that have been published in the Office of Federal Register but have not taken effect be temporarily postponed and to extend their effective date for 60 days. The memorandum also requires that no further regulations be published until a department or agency head appointed or designated by the President reviews and approves the regulation.
Modern Agriculture Wins in Iowa
As many will recall, the Des Moines Water Works (DMWW) sued Iowa drainage districts over agricultural nutrients in Des Moines source water. The case has cost rate payers in Iowa nearly $1 million dollars for attorney fees and threatened to set a very bad and dangerous precedent that could spread to Missouri and most of the country. Agriculture recently won a reprieve from the court in that the Iowa Supreme Court ruled the districts are immune from damage claims. Reacting to the Court's decision, Iowa Secretary of Agriculture Bill Northey stated that DMWW's failed strategy sought to circumvent well-established Iowa law and that the lawsuit has been a needless distraction from the collaborative, research-based approach that is working to improve water quality. It should be noted that this issue is not totally decided. The Iowa Supreme Court opinion does not resolve the federal Clean Water Act issues still before the federal district court. Should the federal court rule in favor of DMWW, drainage districts could be subject to permitting under the CWA. This federal issue is set to be decided in federal court in June.
Supreme Court to Hear WOTUS Case
The Supreme Court of the United States has agreed to hear the Waters of the U.S. case. Many industry and agricultural groups asked the Supreme Court to hear the case after the Sixth Circuit Court of Appeals decided it had original jurisdiction opposed district courts. The Sixth Circuit decision is in direct conflict with the North Dakota District Court which decided it had jurisdiction, not the appellate courts. When the Sixth Circuit Court of Appeals decided it had original jurisdiction, it directly cited its National Cotton Council v. EPA case from 2009, which requires pesticide applicators applying near water to get a Clean Water Act National Pollutant Discharge Elimination System permit in addition to the Federal Insecticide, Fungicide, and Rodenticide Act permits. The case now before the Supreme Court should clear up which courts (appellate or district) are the appropriate courts to hear the WOTUS cases and could potentially determine that the National Cotton case was wrongly decided.
What employers need to know about the new Form I-9
Effective last Saturday (Jan. 22nd) only Form I-9s with revision date 11/14/2016 are valid for new employees. Properly completing and maintaining I-9 employment eligibility verification forms for each employee is a critical element of every employer's regulatory compliance. Why? Because I-9 compliance errors can be very costly and can include jail time for employers who knowingly hire undocumented workers.
National Drug and Alcohol Testing Clearinghouse Established
On December 2, 2016, DOT released a Final Rule establishing a National Drug and Alcohol Testing Clearinghouse for Commercial Truck and Bus Drivers (Clearinghouse). The Clearinghouse will serve as a single source repository containing records of violations of DOT's drug and alcohol testing program by commercial driver's license (CDL) holders. The Final Rule goes into effect on January 6, 2020.
The Clearinghouse rule requires DOT-regulated employers, Medical Review Officers (MROs), Substance Abuse Professionals (SAPs), consortia/third party administrators (C/TPAs), and other service agents to report to the Clearinghouse information related to violations of the drug and alcohol regulations in 49 Code of Federal Regulations, parts 40 and 382 by current and prospective employees. In other words, in three years when the final rule is implemented, employers will be required to check the Clearinghouse Database before hiring new drivers. Additionally, employers will be required to check the Database annually for all existing employees. Drivers that appear in the Database must be prohibited from operating commercial motor vehicles until they have successfully completed the existing return-to-duty process.
Global Safety Network, a preferred vendor we utilize, applauds this news. The creation of the Clearinghouse will increase efficiencies and simplify employers screening in identifying high-risk drivers. Within the next 18-24 months, Global Safety Network will roll-out new service offerings to employers that will include the prospective/new hire search and the annual search.
Entry-Level Driver Training Rule Released
As of February 2020, all entry-level drivers will be required to meet specific training requirements in order to obtain a commercial driver's license (CDL). DOT released its long-awaited entry-level driver training rule that establishes minimum training standards for interstate and intrastate drivers applying for their initial CDL, upgrading their current CDL, or obtaining a hazardous materials, passenger, or school bus endorsement for the first time.
Individuals subject to the entry-level driver training requirements must successfully complete a prescribed program of instruction provided by an entity listed in DOT's Training Provider Registry. The prescribed training includes both theory (knowledge) and behind-the-wheel (range and public road) instruction.
There is no minimum number of hours that driver-trainees must spend on the theory (knowledge) instruction. The rule prescribes specific topics for each of the five theory curricula, requiring the training provider to cover all topics, and requiring that driver-trainees demonstrate their understanding of the material by achieving an overall minimum score of 80 percent on the theory assessment.
The rule does not require a minimum number of behind-the-wheel hours. The proficient completion of the behind-the-wheel portions of the various curricula is based solely on the training instructor's assessment of each driver-trainee's individual performance of the required elements of behind-the-wheel training on the range and public road. The effective date is February 6, 2017.
URS Delayed Again
DOT announced yet another delay in the final implementation phase of the Unified Registration System (URS) rule. They plan to publish an official notice in the Federal Register delaying the implementation date of January 14, 2017, to a date yet to be announced. The agency needs more time in the development of the centralized database and migration of data from multiple platforms.
FMCSA Publishes Guidance on DOT Testing for Temporary Drivers
This article is made possible by J.J. Keller & Associates, a valued partner of the Asmark Institute for over 27 years. Our thanks to J.J. Keller for their support over the years and for the use of this article.
The Federal Motor Carrier Safety Administration (FMCSA) has offered Enforcement Guidance on the use of drivers provided by staffing services in regards to DOT drug and alcohol testing.
Less than 30 consecutive days
According to the FMCSA notice, a staffing service is the "employer" for DOT drug and alcohol testing when the driver is assigned to a motor carrier for a period of less than 30 consecutive days. The staffing service may create its own USDOT testing program to include these casual, intermittent, and occasional drivers.
More than 30 consecutive days
If a leased driver operates or is expected to operate for a motor carrier for a period of more than 30 consecutive days, the driver should be included in the motor carrier's random testing pool, and the motor carrier should assume full responsibility for the driver under its DOT testing program.
The driver staffing service, according to the Guidance, may remove the driver from its DOT random testing pool or allow the driver to remain in it based on its reasonable expectation on whether the driver will or will not return to its employment as a temporary leased driver.
Motor carrier's responsibility when using exception
When a casual driver is assigned to a motor carrier by a staffing service and the exception is being utilized, the motor carrier must ensure the driver is participating in a compliant DOT drug and alcohol testing program.
The motor carrier is responsible for ensuring the staffing service complies with all the testing rules. In other words, the motor carrier is making the third party's testing program its own by way of contract, consortium agreement, or other arrangement. As a result, the staffing services records must be made available to the motor carrier in the event it is investigated by the FMCSA.
Motor carrier's responsibility when not using exception
If the staffing service does not conduct required testing, the motor carrier must treat the temporary driver as it would any other new hire in a safety-sensitive position, including the DOT pre-employment drug screen, issuance of educational materials and company policy, required background inquiries, and placement in the random pool.
Annual Drug Testing Rate Remains at 25%
The annual minimum random drug testing rate remains at 25 percent for Calendar Year 2017, according to the DOT. The annual minimum alcohol testing rate remains at 10 percent for 2017. The annual minimum drug testing rate was lowered by DOT in 2016 from 50 to 25 percent. The change in 2016 was the result of three consecutive calendar years - 2011, 2012, and 2013 - of drug testing data received in the Management Information System (MIS) survey, which indicated that the positive rate for controlled substances was less than one percent. The regulations allow the DOT Administrator the discretion of lowering the minimum rate to 25 percent when the data received in the MIS for two consecutive calendar years indicates that the positive rate for controlled substances is less than one percent. However, should the positive rate for controlled substances exceed one percent at any time, the testing rate will automatically move back to 50 percent.
Electronic Logging Rule Could be Headed Back to Court
The Owner-Operator Independent Drivers Association (OOIDA) has formally filed a request to have its case against the electronic logging device (ELD) rule reheard. The group recently filed its petition with the U.S. Court of Appeals for the Seventh Circuit. On October 31, 2016, three judges from that court struck down OOIDA's legal challenge against the ELD rule, allowing the mandate to proceed. Now, in a 55-page brief, the association is asking for all 12 judges on the court to hear the case.
OOIDA has been arguing that the ELD rule:
  • Violates federal law by allowing ELDs that are not entirely automatic,
  • Won't protect drivers from harassment,
  • Does not justify its high costs,
  • Imposes an unconstitutional search and/or seizure on truck drivers, and
  • Does not protect drivers' rights to confidentiality.
Policy Win on Restricted Class B CDL Flexibility in Indiana
Our affiliates, the Agribusiness Council of Indiana (ACI) recently scored a major victory in its work with the Indiana Bureau of Motor Vehicles (BMV) and the Indiana State Department of Agriculture (ISDA). Over the last several years, weather challenges have made it difficult for its members to secure temporary Commercial Driver's Licenses (CDLs) during the pre-set time periods. Each year, ACI would have to work with our partners in state government to request an extension due to planting season delays.
The BMV and ISDA announced new seasonal options available for the Restricted Class B Commercial Driver's License, which will provide greater flexibility for ag retailers and producers. The new policy will take effect on February 1, 2017.
"During the planting and harvest seasons, those in agriculture have enough to worry about without making it tougher for them to get the proper CDL," said BMV Commissioner Kent Abernathy. "This new policy gives them more flexibility."
Prior to this policy change, those in agricultural transport were only able to haul seasonal loads during predesignated periods of time. During planting season in particular, this put some producers and agricultural retailers at a disadvantage who, regardless of climate or their specific operations, were unable to haul loads before April 2.
Under this new policy, drivers will be able to custom tailor their Restricted Class B CDL license to their own needs and will no longer be restricted to predesignated periods of time.
"Many unknown variables affect planting and harvest seasons, and producers and agribusinesses know best what works for them," said Ted McKinney, ISDA Director. "By providing greater flexibility, this is a major victory for Indiana's agricultural community. I commend BMV on their work and for being such a great partner on this issue."
The Restricted Class B CDL still has to be renewed every four years, and the seasonal periods can be changed at time of renewal. Such a license allows operation of Class B and Class C vehicles only. Holders may not carry hazardous material loads that require a placard except for;
  • Diesel fuel in quantities of 1,000 gallons or less,
  • Liquid fertilizers in vehicles or implements of animal husbandry with total capacities of 3,000 gallons or less,
  • Solid fertilizers that are not transported with any organic substance.
Georgia Installs Drive-over Tire Pressure, Tread Depth Technology
Motorists on Georgia's I-85 now have access to the world's first drive-over tire pressure and tread depth technology. The new technology measures tire pressure when the vehicle drives over the road-embedded sensor plates, and tread depth is measured using multi-image technology and imaging software. Results are then available within seconds from a touch-sensitive kiosk that provides results in a print out or directly to mobile phones or laptops. Developed in conjunction with other networked safety systems, the system aims to improve safety on U.S. roads by reducing the 35,000 fatal accidents that occur every year, which are commonly caused by tire failure.
2017 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.
Getting Down to the Brass Tacks
Amidst all the political wrangling of transitioning to the Trump Administration, there is little known for sure as to how things will play out. I think most will agree there is a lot of hope! This prompts us to "get down to the brass tacks" of the matter and speak to something that we know and understand. No matter whether President Trump is successful or not, there are underlying factors that will permit little change from what has become the norm in the world we live and work. Going back to the 19th century, the practice of using brass tacks to spell out the initials of the deceased person on the top of their coffin became a popular phrase to underscore the basic facts of a situation. The brass tacks of our current situation is that over the past 24 years of three different administrations, society has become substantially more litigious, an effect that cannot be repealed, walked-back or stopped with any Executive Order.
No one complies with the government regulations simply because the government says they have to. Liability, and the desire to control it, is what drives risk management and ultimately culture. The strong drive to prevent liability can be seen in a variety of examples. If you've ever had to go to an employee's home to tell their spouse that their loved one won't be coming home again, your thought process is forever changed from "compliance" to "risk management" and beyond to improving the culture. If your life savings is invested in the fertilizer plant you have built over the years, your main interest isn't compliance with the regulations but moreover the threat of losing it all. Your employees are the most important asset you have and every precaution should be taken to care for them - irregardless of whether a government regulation requires it or not. Regulatory fines are not what motivate most people to do the right thing. As an organization with an extensive history in monitoring risk management issues, we welcome the addition of any measurable level of commonsense back into the regulatory environment in the coming years. The brass tacks of the matter is do the right thing and stay away from both the government and the lawyers.
New Course Planned for Beginning Applicators
The Asmark Institute and AGCO Corporation announced they are collaborating to offer a new training program dedicated to educating and developing custom applicators of crop protection products and plant nutrients. The Applicator Training Course will launch on June 12th and provide a comprehensive program of professional training to newly hired applicators and those with up to five years of experience in liquid and dry application. The course will be delivered at a specially designed training center in Bloomington, Illinois.
"As new crop production products are introduced and agricultural equipment technology advances, the role of custom applicators becomes more important and more complex," explains Richard Kohnen, Director, Tactical Marketing for AGCO's application division. "Our retail customers have expressed their challenges with high turnover of applicators and the inefficiency of training new applicators each year. Working with Asmark Institute to develop the course curriculum and offer applicator training will help alleviate these challenges and produce the next generation of professional applicators."
The Applicator Training Course is designed to immerse participants in practical learning experiences that range from basic math and measurements for proper agrichemical mixtures, to hands-on training in the safe operation of a variety of application equipment used in the industry. Fundamentals of machine maintenance, the importance of product labels, customer service and the overall importance of the applicator's role in agricultural production will be detailed. The course curriculum is built on extensive feedback AGCO and the Asmark Institute have gathered from ag retailers and industry partners. Each course will consist of 3-1/2 days of training with the first course expected to launch on June 13, 2017. Online registration for the Applicator Training Course is slated to begin April 1, 2017, on the Asmark Institute website.
AGCO and the Asmark Institute have long histories of supporting the needs of agricultural retailers. AGCO has been designing, developing and providing the latest in application equipment and technology since its purchase of Ag-Chem Equipment Co. Inc., in 2001, a legacy which began in the 1960s. The company has supported and recognized the industry's top professionals through the AGCO Operator of the Year Award program since 2005.
PSM Guidance
PSM remains high on the list of OSHA's planned activities and there is more than a touch of high emotion involved given how the issue has turned out. The topic of PSM was well on its way to being applied to retail farm centers well before the tragedy at West, Texas occurred. West Fertilizer became a convenient vehicle as seen by some in OSHA to help advance the issue. Based on this knowledge we offer the following guidance by category:
  • Facilities that have already elected to proceed with PSM: If you are in the 60% of our clients that elected to proceed with PSM then please continue on your journey - knowing that when the auditor (OSHA or EPA) visits, they will expect to see compliance with the full program. This includes a current Program 3 RMP and all documentation associated with PSM.
  • Facilities that have waited to transition to PSM: We recommend remaining at the Program 2 level of RMP until required by OSHA and/or EPA to upgrade to the Program 3. While PSM is currently not required for a Program level 2 RMP, we advise facilities to continue to take these following actions:
    • Complete any mechanical integrity upgrades needed to bring your facility current.
    • Continue to keep your P&ID drawing current.
    • Continue to mark your valves with numbers.
    • Continue to keep your written operating procedures current with numbered valves.
  • Many of these activities were started in anticipation of complying with PSM. When PSM is actually required someday, having these requirements already completed and current will significantly reduce your effort, plus it has been shown completing these processes have had an overwhelmingly positive effect on those involved.
Boss Gets Downgraded - CDL Drivers Take Heed!
As the saying goes, the early bird gets the worm .... For CDL drivers, it's a Federal DOT regulation to send a current copy of the medical examiner's certificate to the state. We at the Asmark Institute have seen the consequence first hand of failing to send the information to them at least 7-14 days before your medical expires. Our boss, Allen Summers, had a medical certificate expiring December 30, 2016. His new medical was sent to the state on December 27th, (someone needs to talk to him about waiting till the last minute) but due to the holidays and general delay of the processing time at the state level, his medical was not entered until January 5, 2017. Thinking he was footloose and fancy free, he continued to drive until he received a letter from the state explaining he was downgraded. To avoid the hassle of not being qualified to drive, ensure you schedule your medical examinations early and send a current copy of your updated medical certificate to the state as soon as possible. Some states have websites to help you verify the current status of your self-certification and medical status. Click here to check the participating states.
Tennessee Farmers Cooperative's Feed Mill at LaVergne Recognized
The facility and team have been named the Commercial Dry Livestock Feed Category Winner in the 2016 Feed Facility of the Year competition, a national contest conducted by the American Feed Industry Association. Bobby Brown, manager of the operation, has shown an outstanding dedication to quality feed production, safety and efficiency in operation. According to Brown, the overall average employee seniority level is 16 years, and with that comes a wealth of experience and the ability to be observant of issues and solutions. In regard to safety, Brown said the focus is on documentation and training. Safety training sessions are held each month, as well as task-specific training, food safety and biosecurity training and new-hire training. The company has a safety incentive program where quarterly incentives are given to each employee who works accident-free and with no unsafe act noted during a quarter. An annual incentive is given to each employee who worked all year without an injury or with no unsafe act noted. Our congratulations go out to Bobby and his team for this well-deserved recognition!
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 and/or a Zip File 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 proof 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. New for 2017, we will utilize the new CDX system to electronically file all reports. We have worked closely with U.S. EPA to help develop this system over the past two years.
Reminder: Time to Post Your 300A
It's time to complete your 2016 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.
Note: Beginning this year, new electronic reporting requirements have been put in-place for companies of certain sizes. 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.
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.
It's Time to Register With ResponsibleAg
More than 2,300 facilities have registered with the ResponsibleAg Certification Program, with 557 facilities already receiving their certification. We encourage you to register your facilities today! For more information and to register, go to: www.responsibleag.org
Become a ResponsibleAg Auditor or Attend to Learn More....
Several organizations 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 91 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 February 2017 class is full so reserve your seat in the upcoming September class now. Click here to register.
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.
Fuel Dealers Find Their NAICS Code Changed
The industry we call the fuel dealers and comprised of establishments primarily engaged in retailing heating oil, liquefied petroleum (LP) gas, and other fuels via direct selling recently are learning their NAICS code has changed from 454312, which is no longer valid to the new code: 454310. We first learned of the change in researching the state-specific requirements for reporting this year's SARA.
New OSHA Ag-30 Course - 2017 Summer 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.
EPA Set to Publish New Updated RMP Rules
On December 21st, EPA released a pre-publication copy of the Risk Management Program (RMP) final rule. EPA's release stems from their initial July 2014 Request For Information (RFI) back in the wake of the West, Texas tragedy. The rule was published in the Federal Register on January 13, 2017 and was set to become effective 60 days following publication in the Federal Register or March 13th. The Trump Administration has halted all new rules from going into effect until they have time to research them. Their action includes these new RMP updated rules. The Fertilizer Institute and others are advocating for the withdrawal altogether of the rule through a petition under the Congressional Review Act. Congress is expected to move to withdraw a number of "midnight" Obama Administration rules over the next several weeks using this tool.
I Guess You Could Say They Were "Trumped"
As one of the first acts signed in President Trump's Administration, a memorandum on January 20, 2017 mandating that all regulations that have been published in the Office of Federal Register but have not taken effect be temporarily postponed and to extend their effective date for 60 days. The memorandum also requires that no further regulations be published until a department or agency head appointed or designated by the President reviews and approves the regulation.
Modern Agriculture Wins in Iowa
As many will recall, the Des Moines Water Works (DMWW) sued Iowa drainage districts over agricultural nutrients in Des Moines source water. The case has cost rate payers in Iowa nearly $1 million dollars for attorney fees and threatened to set a very bad and dangerous precedent that could spread to Missouri and most of the country. Agriculture recently won a reprieve from the court in that the Iowa Supreme Court ruled the districts are immune from damage claims. Reacting to the Court's decision, Iowa Secretary of Agriculture Bill Northey stated that DMWW's failed strategy sought to circumvent well-established Iowa law and that the lawsuit has been a needless distraction from the collaborative, research-based approach that is working to improve water quality. It should be noted that this issue is not totally decided. The Iowa Supreme Court opinion does not resolve the federal Clean Water Act issues still before the federal district court. Should the federal court rule in favor of DMWW, drainage districts could be subject to permitting under the CWA. This federal issue is set to be decided in federal court in June.
Supreme Court to Hear WOTUS Case
The Supreme Court of the United States has agreed to hear the Waters of the U.S. case. Many industry and agricultural groups asked the Supreme Court to hear the case after the Sixth Circuit Court of Appeals decided it had original jurisdiction opposed district courts. The Sixth Circuit decision is in direct conflict with the North Dakota District Court which decided it had jurisdiction, not the appellate courts. When the Sixth Circuit Court of Appeals decided it had original jurisdiction, it directly cited its National Cotton Council v. EPA case from 2009, which requires pesticide applicators applying near water to get a Clean Water Act National Pollutant Discharge Elimination System permit in addition to the Federal Insecticide, Fungicide, and Rodenticide Act permits. The case now before the Supreme Court should clear up which courts (appellate or district) are the appropriate courts to hear the WOTUS cases and could potentially determine that the National Cotton case was wrongly decided.
What employers need to know about the new Form I-9
Effective last Saturday (Jan. 22nd) only Form I-9s with revision date 11/14/2016 are valid for new employees. Properly completing and maintaining I-9 employment eligibility verification forms for each employee is a critical element of every employer's regulatory compliance. Why? Because I-9 compliance errors can be very costly and can include jail time for employers who knowingly hire undocumented workers.
National Drug and Alcohol Testing Clearinghouse Established
On December 2, 2016, DOT released a Final Rule establishing a National Drug and Alcohol Testing Clearinghouse for Commercial Truck and Bus Drivers (Clearinghouse). The Clearinghouse will serve as a single source repository containing records of violations of DOT's drug and alcohol testing program by commercial driver's license (CDL) holders. The Final Rule goes into effect on January 6, 2020.
The Clearinghouse rule requires DOT-regulated employers, Medical Review Officers (MROs), Substance Abuse Professionals (SAPs), consortia/third party administrators (C/TPAs), and other service agents to report to the Clearinghouse information related to violations of the drug and alcohol regulations in 49 Code of Federal Regulations, parts 40 and 382 by current and prospective employees. In other words, in three years when the final rule is implemented, employers will be required to check the Clearinghouse Database before hiring new drivers. Additionally, employers will be required to check the Database annually for all existing employees. Drivers that appear in the Database must be prohibited from operating commercial motor vehicles until they have successfully completed the existing return-to-duty process.
Global Safety Network, a preferred vendor we utilize, applauds this news. The creation of the Clearinghouse will increase efficiencies and simplify employers screening in identifying high-risk drivers. Within the next 18-24 months, Global Safety Network will roll-out new service offerings to employers that will include the prospective/new hire search and the annual search.
Entry-Level Driver Training Rule Released
As of February 2020, all entry-level drivers will be required to meet specific training requirements in order to obtain a commercial driver's license (CDL). DOT released its long-awaited entry-level driver training rule that establishes minimum training standards for interstate and intrastate drivers applying for their initial CDL, upgrading their current CDL, or obtaining a hazardous materials, passenger, or school bus endorsement for the first time.
Individuals subject to the entry-level driver training requirements must successfully complete a prescribed program of instruction provided by an entity listed in DOT's Training Provider Registry. The prescribed training includes both theory (knowledge) and behind-the-wheel (range and public road) instruction.
There is no minimum number of hours that driver-trainees must spend on the theory (knowledge) instruction. The rule prescribes specific topics for each of the five theory curricula, requiring the training provider to cover all topics, and requiring that driver-trainees demonstrate their understanding of the material by achieving an overall minimum score of 80 percent on the theory assessment.
The rule does not require a minimum number of behind-the-wheel hours. The proficient completion of the behind-the-wheel portions of the various curricula is based solely on the training instructor's assessment of each driver-trainee's individual performance of the required elements of behind-the-wheel training on the range and public road. The effective date is February 6, 2017.
URS Delayed Again
DOT announced yet another delay in the final implementation phase of the Unified Registration System (URS) rule. They plan to publish an official notice in the Federal Register delaying the implementation date of January 14, 2017, to a date yet to be announced. The agency needs more time in the development of the centralized database and migration of data from multiple platforms.
FMCSA Publishes Guidance on DOT Testing for Temporary Drivers
This article is made possible by J.J. Keller & Associates, a valued partner of the Asmark Institute for over 27 years. Our thanks to J.J. Keller for their support over the years and for the use of this article.
The Federal Motor Carrier Safety Administration (FMCSA) has offered Enforcement Guidance on the use of drivers provided by staffing services in regards to DOT drug and alcohol testing.
Less than 30 consecutive days
According to the FMCSA notice, a staffing service is the "employer" for DOT drug and alcohol testing when the driver is assigned to a motor carrier for a period of less than 30 consecutive days. The staffing service may create its own USDOT testing program to include these casual, intermittent, and occasional drivers.
More than 30 consecutive days
If a leased driver operates or is expected to operate for a motor carrier for a period of more than 30 consecutive days, the driver should be included in the motor carrier's random testing pool, and the motor carrier should assume full responsibility for the driver under its DOT testing program.
The driver staffing service, according to the Guidance, may remove the driver from its DOT random testing pool or allow the driver to remain in it based on its reasonable expectation on whether the driver will or will not return to its employment as a temporary leased driver.
Motor carrier's responsibility when using exception
When a casual driver is assigned to a motor carrier by a staffing service and the exception is being utilized, the motor carrier must ensure the driver is participating in a compliant DOT drug and alcohol testing program.
The motor carrier is responsible for ensuring the staffing service complies with all the testing rules. In other words, the motor carrier is making the third party's testing program its own by way of contract, consortium agreement, or other arrangement. As a result, the staffing services records must be made available to the motor carrier in the event it is investigated by the FMCSA.
Motor carrier's responsibility when not using exception
If the staffing service does not conduct required testing, the motor carrier must treat the temporary driver as it would any other new hire in a safety-sensitive position, including the DOT pre-employment drug screen, issuance of educational materials and company policy, required background inquiries, and placement in the random pool.
Annual Drug Testing Rate Remains at 25%
The annual minimum random drug testing rate remains at 25 percent for Calendar Year 2017, according to the DOT. The annual minimum alcohol testing rate remains at 10 percent for 2017. The annual minimum drug testing rate was lowered by DOT in 2016 from 50 to 25 percent. The change in 2016 was the result of three consecutive calendar years - 2011, 2012, and 2013 - of drug testing data received in the Management Information System (MIS) survey, which indicated that the positive rate for controlled substances was less than one percent. The regulations allow the DOT Administrator the discretion of lowering the minimum rate to 25 percent when the data received in the MIS for two consecutive calendar years indicates that the positive rate for controlled substances is less than one percent. However, should the positive rate for controlled substances exceed one percent at any time, the testing rate will automatically move back to 50 percent.
Electronic Logging Rule Could be Headed Back to Court
The Owner-Operator Independent Drivers Association (OOIDA) has formally filed a request to have its case against the electronic logging device (ELD) rule reheard. The group recently filed its petition with the U.S. Court of Appeals for the Seventh Circuit. On October 31, 2016, three judges from that court struck down OOIDA's legal challenge against the ELD rule, allowing the mandate to proceed. Now, in a 55-page brief, the association is asking for all 12 judges on the court to hear the case.
OOIDA has been arguing that the ELD rule:
  • Violates federal law by allowing ELDs that are not entirely automatic,
  • Won't protect drivers from harassment,
  • Does not justify its high costs,
  • Imposes an unconstitutional search and/or seizure on truck drivers, and
  • Does not protect drivers' rights to confidentiality.
Policy Win on Restricted Class B CDL Flexibility in Indiana
Our affiliates, the Agribusiness Council of Indiana (ACI) recently scored a major victory in its work with the Indiana Bureau of Motor Vehicles (BMV) and the Indiana State Department of Agriculture (ISDA). Over the last several years, weather challenges have made it difficult for its members to secure temporary Commercial Driver's Licenses (CDLs) during the pre-set time periods. Each year, ACI would have to work with our partners in state government to request an extension due to planting season delays.
The BMV and ISDA announced new seasonal options available for the Restricted Class B Commercial Driver's License, which will provide greater flexibility for ag retailers and producers. The new policy will take effect on February 1, 2017.
"During the planting and harvest seasons, those in agriculture have enough to worry about without making it tougher for them to get the proper CDL," said BMV Commissioner Kent Abernathy. "This new policy gives them more flexibility."
Prior to this policy change, those in agricultural transport were only able to haul seasonal loads during predesignated periods of time. During planting season in particular, this put some producers and agricultural retailers at a disadvantage who, regardless of climate or their specific operations, were unable to haul loads before April 2.
Under this new policy, drivers will be able to custom tailor their Restricted Class B CDL license to their own needs and will no longer be restricted to predesignated periods of time.
"Many unknown variables affect planting and harvest seasons, and producers and agribusinesses know best what works for them," said Ted McKinney, ISDA Director. "By providing greater flexibility, this is a major victory for Indiana's agricultural community. I commend BMV on their work and for being such a great partner on this issue."
The Restricted Class B CDL still has to be renewed every four years, and the seasonal periods can be changed at time of renewal. Such a license allows operation of Class B and Class C vehicles only. Holders may not carry hazardous material loads that require a placard except for;
  • Diesel fuel in quantities of 1,000 gallons or less,
  • Liquid fertilizers in vehicles or implements of animal husbandry with total capacities of 3,000 gallons or less,
  • Solid fertilizers that are not transported with any organic substance.
Georgia Installs Drive-over Tire Pressure, Tread Depth Technology
Motorists on Georgia's I-85 now have access to the world's first drive-over tire pressure and tread depth technology. The new technology measures tire pressure when the vehicle drives over the road-embedded sensor plates, and tread depth is measured using multi-image technology and imaging software. Results are then available within seconds from a touch-sensitive kiosk that provides results in a print out or directly to mobile phones or laptops. Developed in conjunction with other networked safety systems, the system aims to improve safety on U.S. roads by reducing the 35,000 fatal accidents that occur every year, which are commonly caused by tire failure.
2017 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.