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Newsletter
Volume 84
November 1, 2010
New Website Launched!
New Website Launched!
In case you missed the fireworks over Owensboro on Monday, October 25th, the new website was rolled out much to the relief of our entire staff. The new website represents a true team effort that encompasses over a hundred new ideas combined with more options and the latest technology. We kinda know (in a small way) what it feels like when Bill Gates, of Microsoft fame, rolls out a new program. Please be patient with us in the first weeks following the launch as we transition from the testing stage to the fully live site.
Caution!
One doesn't have to look far to see that the regulatory and economic environment is not good, especially for the agricultural industry. There are developments, almost daily now, that are challenging and even overwhelming the system our industry has in place to help ensure fair and reasonable regulation. We hope you will review this series of three articles titled Caution!, A Warning! and The Danger!
A Warning!
What started as an isolated case of over-enforcement by Region 4 EPA, has evolved into a situation where U.S. EPA has fundamentally changed its long-standing interpretation of the 1987 exemption within the SARA Tier II reporting requirements for "fertilizer held for sale by a retailer to the ultimate customer." In a two-page letter dated September 3, 2010, Dana S. Tulis, Acting Director of EPA's Office of Emergency Management, reduced the meaning of the exemption recognized by industry for more than 23 years to apply only to "such a fertilizer that is merely held for sale, not one that is mixed or formulated."
This is a stark position given EPA first articulated Congress' intent in 1987 regarding the fertilizer retail exemption: "Because the general public is familiar with the application of agricultural chemicals as part of common farm, nursery or livestock production activities and the retail sale of fertilizers, there is no community need for reporting of the presence of these chemicals." EPA's contrast of "mere retailing" with "manufacturers and wholesalers" suggests a drastic change and represents unexplained inconsistency with past EPA interpretation of the retail fertilizer exemption. At least three retailers have already been cited and paid fines. Look to your State Association for more information on this issue locally. The Fertilizer Institute (TFI) and the Agricultural Retailers Association (ARA) are working together to correct the situation.
The Danger!
The past two years have produced several enforcement actions around the country that were initially thought to be unrelated. A minor wording change in the transition from SIC Code to NAICS Code, a change in an interpretation such as the one above, even an overturned judgment of a previous court case, or a slight revision in how you calculate the volume to prove more than 51% of sales volume can make a world of difference when trying to explain the difference between a retailer that blends fertilizers and a manufacturing operation. Not one, but all of these scenarios have been experienced over the past two years. Each one seems to add leverage to the other and eventually our retail operations will be treated like manufacturers and subject to NPDES Stormwater permits, SARA Section 313 Form R reporting, Process Safety Management and a host of other requirements.
CLA Presents Key Regulatory Challenges at Senate Hearing on EPA Oversight
CropLife America (CLA) President and CEO Jay Vroom provided testimony on behalf of the agricultural community and crop protection industry during the October 1st Senate Committee on Agriculture, Nutrition and Forestry hearing, which focused on the impact of the U.S. Environmental Protection Agency's (EPA's) regulation of agriculture. The hearing, "Oversight Hearing to Examine the Impact of EPA Regulation on Agriculture," was organized as a result of CLA working cooperatively with Senator Blanche Lincoln (D-AR), Chairman of the Senate Committee on Agriculture, to ensure that all such regulatory decisions are based on up-to-date and sound science, the rule of law, and a consistent and transparent due process. Other witnesses providing oral testimony at the hearing included Lisa Jackson, Administrator of the U.S. EPA, Rich Hillman, Vice President of the Arkansas Farm Bureau and Jere White, Executive Director of the Kansas Corn Growers Association.
Vroom spoke in regards to the EPA role in overseeing the crop protection industry and regulating its products, as well as those pesticide products used outside of agriculture. Vroom specifically addressed the 6th Circuit Court's ruling on National Pollutant Discharge Elimination System (NPDES) permits, spray drift label language and the Endangered Species Act. Representing the makers, manufacturers and distributors of virtually all the crop protection products used by American farmers, CLA advocates for a regulatory foundation of sound policies which ensure the safety of consumers, but also allows U.S. farmers to remain productive, profitable and competitive in a global market. Vroom explained that recent regulatory activity from EPA, other Federal agencies and the Courts, has drifted away from scientific integrity and goes in direct conflict with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), a key piece of legislation which for decades has allowed the crop protection industry to work in a stable and predictable regulatory environment.
Vroom stated in his testimony that, "CropLife America has a long history of working cooperatively with EPA and the U.S. Congress on issues affecting crop protection, human health and the environment. But, recently, the businesses that support American agriculture have seen serious deviations from the regular order, transparency and scientific integrity of the Federal government's pesticide review process. We hope that today's hearing will put EPA, other agencies and agriculture back on a path to a more productive dialogue that leads to reasonable, timely, and consistent solutions to our shared concerns." His testimony further stated that, "CropLife America knows that the oversight and action of this Committee may well determine whether the pesticide program descends further into disarray - regulating based on unsupported science, activism and politics - or whether you can thoughtfully guide EPA back to the order of FIFRA's transparent, science-based review and rigorous process."
Senator Lincoln played a vital role in helping to organize and hold the hearing. She and ranking committee minority member, Senator Saxby Chambliss, have long proven to be dedicated allies to American farmers, have worked to protect U.S. growers from redundant policies and helped to build a strong relationship between growers and the EPA. It is clearly the objective of both Senator Lincoln and CLA to advance a more collaborative relationship between the agricultural industry and key government agencies, resulting in increased productivity in the farm sector.
"As Chairman of the Senate Agriculture Committee, Senator Lincoln continues to be the leading voice in support of the critically important agricultural industry," said Beau Greenwood, Executive Vice President of Government Relations and Public Affairs at CLA. "This support more than just helps U.S. farmers do their jobs, but helps our country remain competitive in the international market and produce enough food, fuel and fiber for a growing world. CLA recognizes and thanks Senator Lincoln for her leadership and support."
Jackson Takes on "Anti-Ag" Allegations During First Meeting of Advisory Committee
During the inaugural meeting of the Farm, Ranch and Rural Communities Federal Advisory Committee (FRRCC), an independent panel of ag, food and environmental groups set up to ensure EPA has an agriculture/rural community context for its action, U.S. EPA Administrator Lisa Jackson took on the allegations her agency is "anti-ag." Jackson said, "EPA is working to ensure that America's farmers, ranchers and rural communities are more environmentally sustainable and economically resilient than ever before. American farmers have a broad impact on everything from daily food prices to widespread environmental impacts to emerging fuel technologies. We need them to be part of our decision-making process, and this meeting is yet another step in our engagement with the agriculture community." She also cited "ongoing" efforts to engage with the agriculture community to create opportunities for cooperation between farmers, ranchers and environmental groups.
EPA Lists Five-Year Priorities
EPA's strategic goals for 2011-2015 were laid out recently by U.S. EPA Administrator Lisa Jackson, who said the goals are combined with "five cross-cutting strategies to meet the growing environmental protection needs of the day." The priorities also reflect Jackson's seven area priorities. Benchmarks are included in the plan, Jackson said, including action to reduce greenhouse gas emissions. The five goals are: Taking action on climate change and improving air quality; protecting America's waters; cleaning up communities and advancing sustainable development; ensuring the safety of chemicals and preventing pollution and enforcing environmental laws. Click here for a full copy of her plan.
TFI Special Permit Update
The Fertilizer Institute (TFI) has advised us that Special Permit (SP) 13554 expired on October 31st. SP-13554 authorizes nurse tanks with a missing or illegible identification plate to continue in operation so long as they are tested and pass an external visual test using the procedures in 49 CFR Section 180.407(d), a thickness test as specified in 49 CFR Section 180.407(i), and a pressure test as specified in 49 CFR Section 180.407(g). If your company requested party status through TFI, you are authorized to operate under SP-13554 after the expiration until the Department of Transportation (DOT) acts on TFI's request for renewal. TFI will notify companies that hold party status as they receive additional information from DOT regarding their request of renewal of the special permits.
EPA Extends Labeling Compliance Date
U.S. EPA announced it is amending the pesticide container and containment regulations to provide an eight-month extension of the labeling compliance date from December 16, 2010 to August 16, 2011. This change is being made to provide additional time for pesticide registrants to revise labels to bring them into compliance with the regulations and for EPA and states to review and approve the revised labels. This will also make this portion of the upcoming regulation consistent with the implementation of U.S. EPA's requirement on the collection and recycling of pesticide mini-bulk containers.
Limited 2-Year HOS Exemption Granted for Anhydrous Ammonia Distribution
The Federal Motor Carrier Safety Administration (FMCSA) has granted a 2-year, limited exemption from the federal hours-of-service (HOS) regulations for the transportation of anhydrous ammonia. The exemption covers any distribution point to a local farm retailer or to the ultimate consumer, and from a local farm retailer to the ultimate consumer, as long as the transportation takes place within a 100 air-mile radius of the retail or wholesale distribution point.
This exemption extends the agricultural operations exemption to certain drivers and motor carriers engaged in the distribution of anhydrous ammonia during the planting and harvesting seasons, as defined by the states in which the carriers and drivers operate. DOT and industry believe that the exemption will achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption, based on the terms and conditions imposed. The exemption preempts inconsistent State and local requirements applicable to interstate commerce. The exemption became effective October 6, 2010 and will remain in effect until October 9, 2012, unless revoked earlier by FMCSA.
OSHA's New Penalty Policy In Effect
Assistant Secretary of Labor for Occupational Safety and Health David Michaels stated in an October 6th speech, that OSHA's new penalty policy took effect last week. "While maximum penalties are still set by law at a very low level, administrative changes will reduce the level of reductions provided to employers. We are also working with the state plans to increase their penalty levels. As low as federal OSHA's penalties are, the average penalties in many of the state plans are many times lower," stated Michaels. Michaels went on to highlight the enforcement activities that OSHA is currently working on including:
  • National Emphasis Programs for oil refineries and highly hazardous chemicals
  • Severe Violators Enforcement Program
"Enforcement remains a priority for us because it is a proven, useful deterrent, even for the best employers who may be tempted to defer maintenance or cut corners on worker training and safety procedures. The threat of enforcement and penalties reminds all employers to do the right thing for their workers," said Michaels. Click here for a copy of OSHA's new penalty policies.
DOT Adds Requirement for Security Plans
October 1, 2010 is the effective date for the new obscure requirement in 49 CFR 172.802(b) requiring identification (by name and title) in the Hazardous Materials Transportation Security Plan of the person who is the senior management official responsible for overall security plan development and implementation. The final rule was published in the March 9, 2010 Federal Register under HM-232F. As of October 1st, a senior management official must be "named" who would ensure that the security plan requirements were fulfilled - such as initial and detailed security training, personnel security with background checks, unauthorized access and en-route security. The transportation security plan must be in writing and available to inspectors. The plan also must be reviewed and updated at least annually, and employees must be notified of any changes.
Texting Rule is Official - Just Don't Do It!
In a final rule published in the Federal Register on September 27, 2010, the Federal Motor Carrier Safety Administration (FMCSA) prohibits texting by commercial motor vehicle (CMV) drivers while operating in interstate commerce and imposes sanctions, including civil penalties and disqualification from operating CMVs in interstate commerce, for drivers who fail to comply with this rule. Additionally, motor carriers are prohibited from requiring or allowing their drivers to engage in texting while driving. FMCSA amended its commercial driver's license (CDL) regulations to add to the list of disqualifying offenses, a conviction under state or local traffic laws or ordinances that prohibit texting by CDL drivers while operating a CMV, including school bus drivers. Recent research commissioned by FMCSA shows that the odds of being involved in a safety-critical event (e.g., crash, near-crash, unintentional lane deviation) is 23.2 times greater for CMV drivers who engage in texting while driving than for those who do not.
SBA Releases Report Comparing Compliance Costs - Large vs. Small Businesses
Small businesses still face a disproportionate burden when it comes to costs of federal regulations compared to larger firms, according to a study released by the Small Business Administration's Office of Advocacy. In a report entitled The Impact of Regulatory Costs on Small Firms, the SBA found that compliance with environmental regulations costs 364 percent more in small firms than in large firms. The cost of tax compliance is 206 percent higher in small firms than the cost in large firms. The report details the distribution of regulatory costs for five major sectors of the U.S. economy: manufacturing, trade (wholesale and retail), services, health care and other - a residual category containing all enterprises not included in the other four. The sector-specific findings reveal that the disproportionate cost burden on small firms is particularly stark for the manufacturing sector. In addition, the "other" category also indicates a high level of disproportionality between small and large firms. The compliance cost per employee for small manufacturers is more than double the compliance cost for medium-sized and large firms. In the service sector, regulatory costs differ little between small businesses and larger firms. The distribution of the regulatory burden across firm sizes in the other major business sectors falls somewhere between these two cases.
New Shipping Papers Requirements
Under 49 CFR 171.8, shippers must now ensure that the name of the "person" offering the hazardous material for shipment is on the shipping paper before, after, above or below the emergency response telephone number, unless the shipper's name is displayed in a prominent, readily identifiable and clearly visible manner elsewhere on the shipping paper. The telephone number of the hazardous materials shipper must also be on the shipping paper in a location that allows the information to be easily and quickly found and must be displayed in a prominent, readily identifiable and clearly visible manner. If you use an organization such as INFOTRAC or CHEMTREC to provide the emergency response information, the shipper may put their contract number with the emergency response information provider in lieu of the company name. This must be located before, after, above or below the telephone number in a prominent, readily identifiable and clearly visible manner. This allows the contract information to be easily and quickly accessed in the event of an emergency. This contract number would be provided to the hazardous materials shipper or hazardous waste generator by the agency or organization that they are registered with who would ultimately provide the emergency response information.
Until now, a copy of the shipping paper and the information in the Emergency Response Guidebook would meet the minimum requirements for emergency response information. However, this no longer seems to be the case under the October 19, 2009 Final Rule. DOT states that the information should go well beyond the scope of the DOT classification requirements and hazard communication regulations (shipping name, hazard class, subsidiary hazards, packing groups, inhalation hazard zones) and the 2008 Emergency Response Guidebook. 49 CFR 172.604(a) states that "comprehensive emergency response information and incident mitigation information" must be provided by the emergency response information provider.
EPA Extends SPCC Rule for Certain Facilities
U.S. EPA is extending the compliance date by one year for certain facilities subject to recent amendments to the Spill Prevention Control and Countermeasure (SPCC) rule. Offshore drilling, production, workover and certain onshore facilities are not eligible for this extension. Last year, EPA amended the SPCC rule to strengthen certain provisions. Regulated facilities are required to amend and implement these changes as part of their overall SPCC plans. Types of facilities eligible for the one year extension are: Onshore oil production, farms, electric utility plants, petroleum refining and related industries, chemical manufacturing, food manufacturing, manufacturing facilities using and storing animal fats and vegetable oils, metal and other manufacturing, real estate rental and leasing, retail trade, contract construction, wholesale trade, other commercial, transportation, arts entertainment & recreation, other services (except public administration), petroleum bulk stations and terminals, education, hospitals & other health care, accommodation and food services, fuel oil dealers, gasoline stations, information finance and insurance, mining, warehousing and storage, religious organizations, military installations and government facilities.
In summary, the rule extends the date by which the owners or operators of certain facilities must prepare or amend and implement a SPCC plan by one year to November 10, 2011. The rule delays the compliance date by which facilities must address milk and milk product containers that are constructed according to the current applicable 3-A sanitary standards, and subject to the current applicable grade "A" pasteurized milk ordinance (PMO) or a state dairy regulatory requirement equivalent to the current applicable PMO, until one year after EPA finalizes a rule for these facilities.
These amendments do not remove the regulatory requirement for owners or operators of facilities in operation before August 16, 2002, to maintain and continue implementing a SPCC plan in accordance with the SPCC regulations then in effect. Click here for more information on the rule.
OSHA Targets "High-Hazard" Manufacturers on Recordkeeping
OSHA has re-launched its National Emphasis Program (NEP) on Recordkeeping under a new directive, which establishes enforcement procedures to inspect the accuracy of the occupational injury and illness recording and reporting requirements for establishments in selected industries. OSHA launched the Recordkeeping NEP in September 2009, with a focus on establishments that had reported low injury rates but that were in specific industries with historically high rates. In the most recent launch of the NEP, OSHA is changing its focus, placing a primary emphasis on specific high-hazard manufacturing industry segments. OSHA says that data from the NEP inspections already conducted "clearly" show manufacturing had a higher non-compliance rate than other industries. OSHA is also changing the way it selects establishments from those high-hazard industries for inspection under the Recordkeeping NEP. This new criteria will focus the inspections on facilities reporting rates that are slightly below the cut-off rate used by OSHA for inspection targeting.
Cost of Group Insurance to be Optional on W-2 in 2011
IRS Notice 2010-69 provides interim relief to employers with respect to reporting the cost of coverage under an employer-sponsored group health plan on Form W-2, Wage and Tax Statement. Specifically, this notice provides that reporting the cost of such coverage will not be mandatory for Forms W-2 issued for 2011. The Treasury Department and the IRS have determined that this relief is appropriate to provide employers with additional time to make any necessary changes to their payroll systems or procedures in preparation for compliance with the reporting requirement. The IRS continues to stress that the amounts reportable are not taxable. Included in the Affordable Care Act passed by Congress in March, the new reporting requirement is intended to be informational only, and to provide employees with greater transparency into overall health care costs.
Make Sure Your MCS-150 is Accurate
It has always been important to properly complete your MCS-150, the biennial form characterizing your motor carrier profile, and update the data whenever your motor carrier's information changed. Under the Federal Motor Carrier Safety Administration's (FMCSA) Comprehensive Safety Analysis (CSA), the data entered on this form is used to determine variables in the Carrier's Safety Measurement System (CSMS). It is important that you identify:
  • All the power units in your fleet (i.e., CMVs as defined in §390.5);
  • Your annual vehicle miles travelled; and
  • The types of trucks you operate in your fleet (i.e., combo or straight).
You may wonder why this makes such a difference. In simplest terms, it allows the FMCSA to "normalize" your data and place you in the proper safety/peer group when determining your Behavior Analysis and Safety Improvement Category (BASIC) scores. If you misidentify yourself, you may not have a level playing field. You may be compared against a group of carriers that do not have a similar operation as yours. Even a "minor" clerical error, such as circling a C (Carrier) or an S (Shipper) in question number 25 on your MCS-150 form will classify you as hazmat, and place you under all the hazmat thresholds which are more stringent than a general carrier.
OSHA Releases Top 10 Cited Standards
OSHA has published a list of its most frequently cited standards, as well as penalty amounts for fiscal year 2010. The Top 10 most frequently cited standards remain the same as last fiscal year, including the two construction standards (scaffolding and fall protection) that continue to top the list, and hazard communication which comes in third overall, but first in general industry. Top 10 most frequently cited standards:
  • Scaffolding, general requirements, construction (29 CFR 1926.451)
  • Fall protection, construction (29 CFR 1926.501)
  • Hazard communication standard, general industry (29 CFR 1910.1200)
  • Ladders, construction (29 CFR 1926.1053)
  • Respiratory protection, general industry (29 CFR 1910.134)
  • Control of hazardous energy (lockout/tagout), general industry (29 CFR 1910.147)
  • Electrical, wiring methods, components and equipment, general industry (29 CFR 1910.305)
  • Powered industrial trucks, general industry (29 CFR 1910.178)
  • Electrical systems design, general requirements, general industry (29 CFR 1910.303)
  • Machines, general requirements, general industry (29 CFR 1910.212)
Small Business Jobs Act of 2010
The Small Business Jobs Act of 2010 has seven tax provisions that should be beneficial:
  1. For 2010 and 2011, the amount that may be expensed is increased from $250,000 of qualifying property to $500,000. The phase out threshold is increased from $800,000 to $2,000,000 of annual purchases. This means that the $500,000 amount that may be expensed is reduced by the amount of purchases placed in service during the taxable year over $2,000,000.
  2. During 2008 and 2009, additional first year 50% bonus depreciation was allowed for certain property purchased and placed in service during those years. This has been extended to include calendar year 2010.
  3. The income tax deduction for the health insurance costs of self-employed individuals, their spouses, dependents, and children who are younger than age 27 is now allowed in calculating net earnings from self-employment for purposes of the self-employment tax.
  4. The carryback period for eligible small business credits has been extended from one year to a five year carryback period.
  5. The Act provides for zero tax on capital gains for specific small business investment.
  6. The Act changes the rules so that the use of cell phones can be deducted without burdensome extra documentation.
  7. The Act temporarily increases the deduction for business start up expenses from $5,000 to $10,000.
Most Quotable...
"Government exists to protect us from each other. Where government has gone beyond its limits is in deciding to protect us from ourselves," said Ronald Reagan, 40th President of the United States of America.
2010 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.
New Website Launched!
New Website Launched!
In case you missed the fireworks over Owensboro on Monday, October 25th, the new website was rolled out much to the relief of our entire staff. The new website represents a true team effort that encompasses over a hundred new ideas combined with more options and the latest technology. We kinda know (in a small way) what it feels like when Bill Gates, of Microsoft fame, rolls out a new program. Please be patient with us in the first weeks following the launch as we transition from the testing stage to the fully live site.
Caution!
One doesn't have to look far to see that the regulatory and economic environment is not good, especially for the agricultural industry. There are developments, almost daily now, that are challenging and even overwhelming the system our industry has in place to help ensure fair and reasonable regulation. We hope you will review this series of three articles titled Caution!, A Warning! and The Danger!
A Warning!
What started as an isolated case of over-enforcement by Region 4 EPA, has evolved into a situation where U.S. EPA has fundamentally changed its long-standing interpretation of the 1987 exemption within the SARA Tier II reporting requirements for "fertilizer held for sale by a retailer to the ultimate customer." In a two-page letter dated September 3, 2010, Dana S. Tulis, Acting Director of EPA's Office of Emergency Management, reduced the meaning of the exemption recognized by industry for more than 23 years to apply only to "such a fertilizer that is merely held for sale, not one that is mixed or formulated."
This is a stark position given EPA first articulated Congress' intent in 1987 regarding the fertilizer retail exemption: "Because the general public is familiar with the application of agricultural chemicals as part of common farm, nursery or livestock production activities and the retail sale of fertilizers, there is no community need for reporting of the presence of these chemicals." EPA's contrast of "mere retailing" with "manufacturers and wholesalers" suggests a drastic change and represents unexplained inconsistency with past EPA interpretation of the retail fertilizer exemption. At least three retailers have already been cited and paid fines. Look to your State Association for more information on this issue locally. The Fertilizer Institute (TFI) and the Agricultural Retailers Association (ARA) are working together to correct the situation.
The Danger!
The past two years have produced several enforcement actions around the country that were initially thought to be unrelated. A minor wording change in the transition from SIC Code to NAICS Code, a change in an interpretation such as the one above, even an overturned judgment of a previous court case, or a slight revision in how you calculate the volume to prove more than 51% of sales volume can make a world of difference when trying to explain the difference between a retailer that blends fertilizers and a manufacturing operation. Not one, but all of these scenarios have been experienced over the past two years. Each one seems to add leverage to the other and eventually our retail operations will be treated like manufacturers and subject to NPDES Stormwater permits, SARA Section 313 Form R reporting, Process Safety Management and a host of other requirements.
CLA Presents Key Regulatory Challenges at Senate Hearing on EPA Oversight
CropLife America (CLA) President and CEO Jay Vroom provided testimony on behalf of the agricultural community and crop protection industry during the October 1st Senate Committee on Agriculture, Nutrition and Forestry hearing, which focused on the impact of the U.S. Environmental Protection Agency's (EPA's) regulation of agriculture. The hearing, "Oversight Hearing to Examine the Impact of EPA Regulation on Agriculture," was organized as a result of CLA working cooperatively with Senator Blanche Lincoln (D-AR), Chairman of the Senate Committee on Agriculture, to ensure that all such regulatory decisions are based on up-to-date and sound science, the rule of law, and a consistent and transparent due process. Other witnesses providing oral testimony at the hearing included Lisa Jackson, Administrator of the U.S. EPA, Rich Hillman, Vice President of the Arkansas Farm Bureau and Jere White, Executive Director of the Kansas Corn Growers Association.
Vroom spoke in regards to the EPA role in overseeing the crop protection industry and regulating its products, as well as those pesticide products used outside of agriculture. Vroom specifically addressed the 6th Circuit Court's ruling on National Pollutant Discharge Elimination System (NPDES) permits, spray drift label language and the Endangered Species Act. Representing the makers, manufacturers and distributors of virtually all the crop protection products used by American farmers, CLA advocates for a regulatory foundation of sound policies which ensure the safety of consumers, but also allows U.S. farmers to remain productive, profitable and competitive in a global market. Vroom explained that recent regulatory activity from EPA, other Federal agencies and the Courts, has drifted away from scientific integrity and goes in direct conflict with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), a key piece of legislation which for decades has allowed the crop protection industry to work in a stable and predictable regulatory environment.
Vroom stated in his testimony that, "CropLife America has a long history of working cooperatively with EPA and the U.S. Congress on issues affecting crop protection, human health and the environment. But, recently, the businesses that support American agriculture have seen serious deviations from the regular order, transparency and scientific integrity of the Federal government's pesticide review process. We hope that today's hearing will put EPA, other agencies and agriculture back on a path to a more productive dialogue that leads to reasonable, timely, and consistent solutions to our shared concerns." His testimony further stated that, "CropLife America knows that the oversight and action of this Committee may well determine whether the pesticide program descends further into disarray - regulating based on unsupported science, activism and politics - or whether you can thoughtfully guide EPA back to the order of FIFRA's transparent, science-based review and rigorous process."
Senator Lincoln played a vital role in helping to organize and hold the hearing. She and ranking committee minority member, Senator Saxby Chambliss, have long proven to be dedicated allies to American farmers, have worked to protect U.S. growers from redundant policies and helped to build a strong relationship between growers and the EPA. It is clearly the objective of both Senator Lincoln and CLA to advance a more collaborative relationship between the agricultural industry and key government agencies, resulting in increased productivity in the farm sector.
"As Chairman of the Senate Agriculture Committee, Senator Lincoln continues to be the leading voice in support of the critically important agricultural industry," said Beau Greenwood, Executive Vice President of Government Relations and Public Affairs at CLA. "This support more than just helps U.S. farmers do their jobs, but helps our country remain competitive in the international market and produce enough food, fuel and fiber for a growing world. CLA recognizes and thanks Senator Lincoln for her leadership and support."
Jackson Takes on "Anti-Ag" Allegations During First Meeting of Advisory Committee
During the inaugural meeting of the Farm, Ranch and Rural Communities Federal Advisory Committee (FRRCC), an independent panel of ag, food and environmental groups set up to ensure EPA has an agriculture/rural community context for its action, U.S. EPA Administrator Lisa Jackson took on the allegations her agency is "anti-ag." Jackson said, "EPA is working to ensure that America's farmers, ranchers and rural communities are more environmentally sustainable and economically resilient than ever before. American farmers have a broad impact on everything from daily food prices to widespread environmental impacts to emerging fuel technologies. We need them to be part of our decision-making process, and this meeting is yet another step in our engagement with the agriculture community." She also cited "ongoing" efforts to engage with the agriculture community to create opportunities for cooperation between farmers, ranchers and environmental groups.
EPA Lists Five-Year Priorities
EPA's strategic goals for 2011-2015 were laid out recently by U.S. EPA Administrator Lisa Jackson, who said the goals are combined with "five cross-cutting strategies to meet the growing environmental protection needs of the day." The priorities also reflect Jackson's seven area priorities. Benchmarks are included in the plan, Jackson said, including action to reduce greenhouse gas emissions. The five goals are: Taking action on climate change and improving air quality; protecting America's waters; cleaning up communities and advancing sustainable development; ensuring the safety of chemicals and preventing pollution and enforcing environmental laws. Click here for a full copy of her plan.
TFI Special Permit Update
The Fertilizer Institute (TFI) has advised us that Special Permit (SP) 13554 expired on October 31st. SP-13554 authorizes nurse tanks with a missing or illegible identification plate to continue in operation so long as they are tested and pass an external visual test using the procedures in 49 CFR Section 180.407(d), a thickness test as specified in 49 CFR Section 180.407(i), and a pressure test as specified in 49 CFR Section 180.407(g). If your company requested party status through TFI, you are authorized to operate under SP-13554 after the expiration until the Department of Transportation (DOT) acts on TFI's request for renewal. TFI will notify companies that hold party status as they receive additional information from DOT regarding their request of renewal of the special permits.
EPA Extends Labeling Compliance Date
U.S. EPA announced it is amending the pesticide container and containment regulations to provide an eight-month extension of the labeling compliance date from December 16, 2010 to August 16, 2011. This change is being made to provide additional time for pesticide registrants to revise labels to bring them into compliance with the regulations and for EPA and states to review and approve the revised labels. This will also make this portion of the upcoming regulation consistent with the implementation of U.S. EPA's requirement on the collection and recycling of pesticide mini-bulk containers.
Limited 2-Year HOS Exemption Granted for Anhydrous Ammonia Distribution
The Federal Motor Carrier Safety Administration (FMCSA) has granted a 2-year, limited exemption from the federal hours-of-service (HOS) regulations for the transportation of anhydrous ammonia. The exemption covers any distribution point to a local farm retailer or to the ultimate consumer, and from a local farm retailer to the ultimate consumer, as long as the transportation takes place within a 100 air-mile radius of the retail or wholesale distribution point.
This exemption extends the agricultural operations exemption to certain drivers and motor carriers engaged in the distribution of anhydrous ammonia during the planting and harvesting seasons, as defined by the states in which the carriers and drivers operate. DOT and industry believe that the exemption will achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption, based on the terms and conditions imposed. The exemption preempts inconsistent State and local requirements applicable to interstate commerce. The exemption became effective October 6, 2010 and will remain in effect until October 9, 2012, unless revoked earlier by FMCSA.
OSHA's New Penalty Policy In Effect
Assistant Secretary of Labor for Occupational Safety and Health David Michaels stated in an October 6th speech, that OSHA's new penalty policy took effect last week. "While maximum penalties are still set by law at a very low level, administrative changes will reduce the level of reductions provided to employers. We are also working with the state plans to increase their penalty levels. As low as federal OSHA's penalties are, the average penalties in many of the state plans are many times lower," stated Michaels. Michaels went on to highlight the enforcement activities that OSHA is currently working on including:
  • National Emphasis Programs for oil refineries and highly hazardous chemicals
  • Severe Violators Enforcement Program
"Enforcement remains a priority for us because it is a proven, useful deterrent, even for the best employers who may be tempted to defer maintenance or cut corners on worker training and safety procedures. The threat of enforcement and penalties reminds all employers to do the right thing for their workers," said Michaels. Click here for a copy of OSHA's new penalty policies.
DOT Adds Requirement for Security Plans
October 1, 2010 is the effective date for the new obscure requirement in 49 CFR 172.802(b) requiring identification (by name and title) in the Hazardous Materials Transportation Security Plan of the person who is the senior management official responsible for overall security plan development and implementation. The final rule was published in the March 9, 2010 Federal Register under HM-232F. As of October 1st, a senior management official must be "named" who would ensure that the security plan requirements were fulfilled - such as initial and detailed security training, personnel security with background checks, unauthorized access and en-route security. The transportation security plan must be in writing and available to inspectors. The plan also must be reviewed and updated at least annually, and employees must be notified of any changes.
Texting Rule is Official - Just Don't Do It!
In a final rule published in the Federal Register on September 27, 2010, the Federal Motor Carrier Safety Administration (FMCSA) prohibits texting by commercial motor vehicle (CMV) drivers while operating in interstate commerce and imposes sanctions, including civil penalties and disqualification from operating CMVs in interstate commerce, for drivers who fail to comply with this rule. Additionally, motor carriers are prohibited from requiring or allowing their drivers to engage in texting while driving. FMCSA amended its commercial driver's license (CDL) regulations to add to the list of disqualifying offenses, a conviction under state or local traffic laws or ordinances that prohibit texting by CDL drivers while operating a CMV, including school bus drivers. Recent research commissioned by FMCSA shows that the odds of being involved in a safety-critical event (e.g., crash, near-crash, unintentional lane deviation) is 23.2 times greater for CMV drivers who engage in texting while driving than for those who do not.
SBA Releases Report Comparing Compliance Costs - Large vs. Small Businesses
Small businesses still face a disproportionate burden when it comes to costs of federal regulations compared to larger firms, according to a study released by the Small Business Administration's Office of Advocacy. In a report entitled The Impact of Regulatory Costs on Small Firms, the SBA found that compliance with environmental regulations costs 364 percent more in small firms than in large firms. The cost of tax compliance is 206 percent higher in small firms than the cost in large firms. The report details the distribution of regulatory costs for five major sectors of the U.S. economy: manufacturing, trade (wholesale and retail), services, health care and other - a residual category containing all enterprises not included in the other four. The sector-specific findings reveal that the disproportionate cost burden on small firms is particularly stark for the manufacturing sector. In addition, the "other" category also indicates a high level of disproportionality between small and large firms. The compliance cost per employee for small manufacturers is more than double the compliance cost for medium-sized and large firms. In the service sector, regulatory costs differ little between small businesses and larger firms. The distribution of the regulatory burden across firm sizes in the other major business sectors falls somewhere between these two cases.
New Shipping Papers Requirements
Under 49 CFR 171.8, shippers must now ensure that the name of the "person" offering the hazardous material for shipment is on the shipping paper before, after, above or below the emergency response telephone number, unless the shipper's name is displayed in a prominent, readily identifiable and clearly visible manner elsewhere on the shipping paper. The telephone number of the hazardous materials shipper must also be on the shipping paper in a location that allows the information to be easily and quickly found and must be displayed in a prominent, readily identifiable and clearly visible manner. If you use an organization such as INFOTRAC or CHEMTREC to provide the emergency response information, the shipper may put their contract number with the emergency response information provider in lieu of the company name. This must be located before, after, above or below the telephone number in a prominent, readily identifiable and clearly visible manner. This allows the contract information to be easily and quickly accessed in the event of an emergency. This contract number would be provided to the hazardous materials shipper or hazardous waste generator by the agency or organization that they are registered with who would ultimately provide the emergency response information.
Until now, a copy of the shipping paper and the information in the Emergency Response Guidebook would meet the minimum requirements for emergency response information. However, this no longer seems to be the case under the October 19, 2009 Final Rule. DOT states that the information should go well beyond the scope of the DOT classification requirements and hazard communication regulations (shipping name, hazard class, subsidiary hazards, packing groups, inhalation hazard zones) and the 2008 Emergency Response Guidebook. 49 CFR 172.604(a) states that "comprehensive emergency response information and incident mitigation information" must be provided by the emergency response information provider.
EPA Extends SPCC Rule for Certain Facilities
U.S. EPA is extending the compliance date by one year for certain facilities subject to recent amendments to the Spill Prevention Control and Countermeasure (SPCC) rule. Offshore drilling, production, workover and certain onshore facilities are not eligible for this extension. Last year, EPA amended the SPCC rule to strengthen certain provisions. Regulated facilities are required to amend and implement these changes as part of their overall SPCC plans. Types of facilities eligible for the one year extension are: Onshore oil production, farms, electric utility plants, petroleum refining and related industries, chemical manufacturing, food manufacturing, manufacturing facilities using and storing animal fats and vegetable oils, metal and other manufacturing, real estate rental and leasing, retail trade, contract construction, wholesale trade, other commercial, transportation, arts entertainment & recreation, other services (except public administration), petroleum bulk stations and terminals, education, hospitals & other health care, accommodation and food services, fuel oil dealers, gasoline stations, information finance and insurance, mining, warehousing and storage, religious organizations, military installations and government facilities.
In summary, the rule extends the date by which the owners or operators of certain facilities must prepare or amend and implement a SPCC plan by one year to November 10, 2011. The rule delays the compliance date by which facilities must address milk and milk product containers that are constructed according to the current applicable 3-A sanitary standards, and subject to the current applicable grade "A" pasteurized milk ordinance (PMO) or a state dairy regulatory requirement equivalent to the current applicable PMO, until one year after EPA finalizes a rule for these facilities.
These amendments do not remove the regulatory requirement for owners or operators of facilities in operation before August 16, 2002, to maintain and continue implementing a SPCC plan in accordance with the SPCC regulations then in effect. Click here for more information on the rule.
OSHA Targets "High-Hazard" Manufacturers on Recordkeeping
OSHA has re-launched its National Emphasis Program (NEP) on Recordkeeping under a new directive, which establishes enforcement procedures to inspect the accuracy of the occupational injury and illness recording and reporting requirements for establishments in selected industries. OSHA launched the Recordkeeping NEP in September 2009, with a focus on establishments that had reported low injury rates but that were in specific industries with historically high rates. In the most recent launch of the NEP, OSHA is changing its focus, placing a primary emphasis on specific high-hazard manufacturing industry segments. OSHA says that data from the NEP inspections already conducted "clearly" show manufacturing had a higher non-compliance rate than other industries. OSHA is also changing the way it selects establishments from those high-hazard industries for inspection under the Recordkeeping NEP. This new criteria will focus the inspections on facilities reporting rates that are slightly below the cut-off rate used by OSHA for inspection targeting.
Cost of Group Insurance to be Optional on W-2 in 2011
IRS Notice 2010-69 provides interim relief to employers with respect to reporting the cost of coverage under an employer-sponsored group health plan on Form W-2, Wage and Tax Statement. Specifically, this notice provides that reporting the cost of such coverage will not be mandatory for Forms W-2 issued for 2011. The Treasury Department and the IRS have determined that this relief is appropriate to provide employers with additional time to make any necessary changes to their payroll systems or procedures in preparation for compliance with the reporting requirement. The IRS continues to stress that the amounts reportable are not taxable. Included in the Affordable Care Act passed by Congress in March, the new reporting requirement is intended to be informational only, and to provide employees with greater transparency into overall health care costs.
Make Sure Your MCS-150 is Accurate
It has always been important to properly complete your MCS-150, the biennial form characterizing your motor carrier profile, and update the data whenever your motor carrier's information changed. Under the Federal Motor Carrier Safety Administration's (FMCSA) Comprehensive Safety Analysis (CSA), the data entered on this form is used to determine variables in the Carrier's Safety Measurement System (CSMS). It is important that you identify:
  • All the power units in your fleet (i.e., CMVs as defined in §390.5);
  • Your annual vehicle miles travelled; and
  • The types of trucks you operate in your fleet (i.e., combo or straight).
You may wonder why this makes such a difference. In simplest terms, it allows the FMCSA to "normalize" your data and place you in the proper safety/peer group when determining your Behavior Analysis and Safety Improvement Category (BASIC) scores. If you misidentify yourself, you may not have a level playing field. You may be compared against a group of carriers that do not have a similar operation as yours. Even a "minor" clerical error, such as circling a C (Carrier) or an S (Shipper) in question number 25 on your MCS-150 form will classify you as hazmat, and place you under all the hazmat thresholds which are more stringent than a general carrier.
OSHA Releases Top 10 Cited Standards
OSHA has published a list of its most frequently cited standards, as well as penalty amounts for fiscal year 2010. The Top 10 most frequently cited standards remain the same as last fiscal year, including the two construction standards (scaffolding and fall protection) that continue to top the list, and hazard communication which comes in third overall, but first in general industry. Top 10 most frequently cited standards:
  • Scaffolding, general requirements, construction (29 CFR 1926.451)
  • Fall protection, construction (29 CFR 1926.501)
  • Hazard communication standard, general industry (29 CFR 1910.1200)
  • Ladders, construction (29 CFR 1926.1053)
  • Respiratory protection, general industry (29 CFR 1910.134)
  • Control of hazardous energy (lockout/tagout), general industry (29 CFR 1910.147)
  • Electrical, wiring methods, components and equipment, general industry (29 CFR 1910.305)
  • Powered industrial trucks, general industry (29 CFR 1910.178)
  • Electrical systems design, general requirements, general industry (29 CFR 1910.303)
  • Machines, general requirements, general industry (29 CFR 1910.212)
Small Business Jobs Act of 2010
The Small Business Jobs Act of 2010 has seven tax provisions that should be beneficial:
  1. For 2010 and 2011, the amount that may be expensed is increased from $250,000 of qualifying property to $500,000. The phase out threshold is increased from $800,000 to $2,000,000 of annual purchases. This means that the $500,000 amount that may be expensed is reduced by the amount of purchases placed in service during the taxable year over $2,000,000.
  2. During 2008 and 2009, additional first year 50% bonus depreciation was allowed for certain property purchased and placed in service during those years. This has been extended to include calendar year 2010.
  3. The income tax deduction for the health insurance costs of self-employed individuals, their spouses, dependents, and children who are younger than age 27 is now allowed in calculating net earnings from self-employment for purposes of the self-employment tax.
  4. The carryback period for eligible small business credits has been extended from one year to a five year carryback period.
  5. The Act provides for zero tax on capital gains for specific small business investment.
  6. The Act changes the rules so that the use of cell phones can be deducted without burdensome extra documentation.
  7. The Act temporarily increases the deduction for business start up expenses from $5,000 to $10,000.
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"Government exists to protect us from each other. Where government has gone beyond its limits is in deciding to protect us from ourselves," said Ronald Reagan, 40th President of the United States of America.
2010 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.