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Newsletter
Volume 93
August 1, 2011
2011 Safety School - Register Today!
If you are in charge of safety and compliance at your retail plant, you should be registering and planning to attend the 2011 National Agronomic Environmental Health & Safety School to be held at the Doubletree Hotel in Bloomington, IL. The agenda has been posted for the August 23-24 meeting. Go to www.naehss.org to view the agenda and to register. There are top-level speakers from the USDOT and FMCSA discussing nurse tank inspections and motor vehicle enforcement, and a speaker from USEPA explaining the final Spill Prevention Control & Countermeasure (SPCC) regulations that will impact retailers and farmers who store fuel on site. This is a top-quality meeting you won't want to miss!
OISC Sends 2nd Notice on Nurse Tank Repairs
In the early 90's the State of Indiana authorized welded repairs on nurse tanks outside of the provisions of the National Board Inspection Code as required by the DOT regulations. Earlier this year, some retailers who own or operate anhydrous ammonia nurse tanks in Indiana had been informed by DOT enforcement personnel these welded repairs on nurse tanks are not in compliance with DOT regulations and the nurse tanks in question could be placed out of service. The Agribusiness Council of Indiana (ACI) contacted The Fertilizer Institute (TFI) for assistance in resolving this matter. While many of these tanks were repaired by an authorized R-Stamp welder, the welded repairs did not follow the National Board of Boiler and Pressure Vessel's Form R-1.
The Agribusiness Council of Indiana, working with TFI, the Office of the Indiana State Chemist (OISC) and the Agricultural Retailers Association (ARA), developed a plan to identify the state of nurse tank welded repairs in Indiana and take corrective action. The Indiana nurse tank plan for corrective action was discussed with DOT. DOT has advised that the plan is an appropriate course of action. The Agribusiness Council of Indiana and the Office of the Indiana State Chemist will do extensive outreach to nurse tank owners or operators in the State of Indiana to ensure compliance with the plan.
Nurse tank owners or operators in the State of Indiana are advised to keep a copy of this plan on file. Should any enforcement issues arise, please notify Mark Shublak at the Agribusiness Council of Indiana immediately. Click here for the Action Plan and here for a memo from the Office of the Indiana State Chemist.
DHS Chemical Sector Security Summit
The fifth annual Chemical Sector Security Summit was held in Baltimore, Maryland in early July. Melissa Iskra, Manager of Corporate Relations for the Asmark Institute, attended the event outlining CFATS with updates on ammonium nitrate, terrorism, new regulations and recent suspicious activity. Close to 600 participants attended the summit that was sponsored by the U.S. Department of Homeland Security and the Chemical Sector Coordinating Council. The summit was opened with the Honorable Jane Holl Lute, Deputy Secretary of DHS, discussing the current security landscape and outlook for the future. Participants learned about upcoming inspections and were given a chance for private, more in-depth breakout sessions, to inquire about their own situations and facilities. The summit provides direction to many retailers and industry representatives as to what DHS has in store for the agricultural community and how to better understand the compliance trends with regard to CFATS. DHS representatives were on hand to answer any questions and guide participants through current and future legislation. For more information or to view the power point presentations, please click here to visit the DHS website.
Research Concludes Atrazine is a Non-Threat to Human Health
Recent research published by the National Institute of Health and the Uniformed Services University of the Health Sciences concluded that atrazine never caused cancer, and it still does not pose a cancer threat. The ongoing Agricultural Health Study (AHS) found no link between exposure to atrazine and overall cancer risk. The authors concluded that generally, there was no consistent evidence of an association between atrazine use and any cancer site. The study draws on the AHS's prospective cohort of over 57,000 licensed pesticide applicators (and their families), and is an extension of an earlier AHS analysis of cancer risk among self-reported atrazine users with six years of follow-up. Among approximately 36,000 applicators who reported using atrazine, just over 3,000 had developed cancer, which amounts to no increase in overall cancer risk between users in the highest exposure compared to the lowest exposure categories. These results are consistent with published literature that indicates this herbicide has no adverse effect on any living organism, except weeds. Click here to view the article.
Annual State Association's Legislative Fly-In
Agribusiness association leaders from Illinois, Montana, South Dakota, Washington, Wyoming, Kansas, Missouri and Michigan were in Washington, D.C. last week for their annual legislative fly-in. Melissa Iskra, Manager of Corporate Relations for the Asmark Institute, participated in the event. While visiting the nation's capital, the delegates received an in-depth briefing on legislative issues including the agricultural hours of service exemption, nutrient criteria, security, endangered species, National Pollutant Discharge Elimination System (NPDES) permits and biotechnology. The briefing session included issue presentations by The Fertilizer Institute (TFI), the Agricultural Retailers Association (ARA), CropLife America and the Biotechnology Industry Organization (BIO).
OSHA Proposes Changes to Injury Reporting, Recordkeeping Exemptions
OSHA is proposing to update the list of industries that are partially exempt from maintaining records of occupational injuries on the basis of more recent Days Away, Restricted or Transferred (DART) rates contained in the North American Industry Classification System (NAICS). It is also proposing requirements for employers to report to OSHA, within eight hours, all work-related fatalities and all work-related, in-patient hospitalizations; and within 24 hours, all work-related amputations.
OSHA's current regulation partially exempts certain lower-hazard industries classified in Standard Industrial Classification (SIC) codes 52 through 89 from injury and illness recordkeeping requirements. The current list of partially exempt industries is based on injury and illness data compiled by the Bureau of Labor Statistics (BLS) for 1997-99. OSHA is proposing to revise the list of partially exempt industries using the North American Industry Classification System.
OSHA is also proposing to revise Section 1904.39, which currently requires an employer to report to OSHA, within eight hours, all work-related fatalities and in-patient hospitalizations of three or more employees. The proposed rule would require an employer to report to OSHA, within eight hours, all work-related fatalities and all work-related in-patient hospitalizations; and within 24 hours, all work-related amputations. Comments must be submitted by September 20, 2011. Click here for more information.
IEMA Material Safety Data Sheet (MSDS) Request
Companies in Illinois that submitted a Tier 2 report to the Illinois Emergency Management Agency (IEMA) recently received a request for a copy of the most recent MSDS for each product reported for 2010. IEMA has been challenged in court by an environmental group and are under a court order to make MSDS sheets available to the public in case anyone submits a request to see a company's Tier 2 report. If you remember, the SARA Tier II Report is commonly referred to as the "Community Right-to-Know." Jean Payne and Kevin Runkle with IFCA have been successful in working with IEMA to extend the deadline from August 15, 2011 to December 31, 2011.
IEMA is requiring each person that submitted a 2010 Tier 2 report to log on to their last submission and attach a copy of the most current copy of the MSDS for each product reported for 2010. While we can't do this for you, we can make the task easier. Current MSDS in PDF format can be accessed to help with your download and submittal to IEMA. If you need assistance submitting your MSDS, contact Lori Canterbury with IEMA at 217-558-0559 or tier2mgr@illinois.gov.
For your convenience, a copy of your Master Report (contains the list of products to be submitted for your 2010 Tier 2) is available to you from our website by accessing Snapshots and clicking on the "Last Prepared" Date under SARA in the Facility Info section.
U.S. Senators Throwing Roadblocks at NPDES Fix
HR 872 is legislation in Congress to eliminate the need for pesticide applicators to get a NPDES permit in order to apply pesticides on or near water. The bill passed the U.S. House with a significant majority, but is experiencing roadblocks in the Senate. Senator Ben Cardin (D-MD) and Senator Barbara Boxer (D-CA) have joined forces to block a vote on HR 872 even though it has already passed out of the Senate Ag Committee. They claim that the bill will weaken water quality protections. Hopefully support in the senate can be obtained to resolve this issue before the October 31, 2011 effective date of the NPDES permit requirement.
Restricted-Use Pesticides Emphasize Safety and Responsible Application
CropLife America issued this notice on the use and sale of restricted-use pesticides last week. Applicators play an important role in guaranteeing the safe application of crop protection products in accordance with the label instructions. In addition to FIFRA general-use product labels, there is another class of crop protection products named restricted-use pesticides (RUPs) that require further and highly specified applicator training, and require the dealer to fully screen potential buyers and applicators prior to the sale. Pesticide dealers are required to prepare and maintain specific record information for each sale or distribution of a RUP, guaranteeing that RUPs are only applied by properly licensed certified applicators or consultants.
Pesticide applicators should not attempt to purchase or use RUPs that are outside the scope of their license as RUP training and licensing is specific to each class of pesticide (i.e. herbicide, insecticide, fungicide). For example, it is considered unlawful distribution to sell a RUP rodenticide to a certified applicator licensed within the agriculture herbicide category; the rodenticide can only be distributed to a certified applicator within the agriculture vertebrate pest category. RUP dealers are encouraged to ask pertinent questions about intended use to help prevent potential misuse, and they have the right to refuse a sale if they do not believe the buyer is properly licensed to use the product. This is just one example of the many stewardship steps the industry takes to keep modern agriculture safe.
Roadcheck 2011: Lowest OOS Rate Since 1991
Results from Roadcheck 2011, the three-day, commercial vehicle safety enforcement and education campaign organized annually by the Commercial Vehicle Safety Alliance (CVSA), reveal that the commercial motor carrier and motor coach industries continue to improve the maintenance and safety of their operations, with overall out-of-service (OOS) rates being the lowest since Roadcheck began in 1991.
Nearly 8,000 CVSA and FMCSA certified inspectors at 2,550 locations across North America performed 70,712 truck and bus inspections in 72 hours. Inspectors focused on the North American Standard Level I inspection, motor coach inspections, hours-of-service logbooks and household goods carriers.
Once again, hours-of-service logbook violations lead overwhelmingly as a percentage of all driver violations cited (50.6 percent of all driver out-of-service violations). The hours-of-service rules are designed to reduce driver fatigue which may be a contributing factor in large truck and bus crashes. Inspectors also queried drivers of their use of electronic logging devices and found that 14 percent were using them.
An additional emphasis was placed on identifying carriers of household goods (HHG) operating "under-the-radar" by using improperly marked rental vehicles and/or operating as a for-hire property carrier rather than HHG carrier. The twelve states that participated in the HHG focus activity identified 32 carriers that required enforcement action.
Roadcheck data from 2011 shows the overall vehicle compliance rate at 80.7 percent (80.0 percent in 2010), with an overall driver compliance rate of 95.8 percent (95.6 percent from last year). For NAS Level I inspections, the compliance rates were up to 77.2 percent for vehicles (76.7 percent in 2010) and 96.3 percent for drivers (unchanged from 2010). In addition, there were 296 fewer safety belt violations in 2011 (863 vs. 1,159 in 2010).
Roadcheck 2011 facts:
Driver results for the vehicle types were as follows:
  • All inspections: 96.0 percent of drivers passed, and 4.0 percent were placed out of service (4.4 percent were out of service in 2010).
  • All Level I inspections: 96.3 percent of drivers passed, and 3.7 percent were placed out of service (3.7 percent were out of service in 2010).
  • HazMat: 97.5 percent of drivers passed, and 2.5 percent were placed out of service (2.5 percent were out of service in 2010).
  • Passenger carrying vehicles: 97.4 percent of drivers passed, and 2.6 percent were placed out of service in 2011 (3.6 percent were placed out of service in 2010).
Vehicle results were as follows:
  • All inspections: 81.7 percent of vehicles passed, and 18.3 percent were placed out of service (20.0 percent were out of service in 2010).
  • All Level I inspections: 77.4 percent of vehicles passed, and 22.8 percent were placed out of service (23.3 percent were out of service in 2010).
  • HazMat: 83.7 percent of vehicles passed the inspection, and 17.9 percent were placed out of service (16.3 percent were out of service in 2010).
  • Passenger carrying vehicles: 91.3 percent of vehicles passed the inspection, and 8.7 percent were placed out of service (9.0 percent were out of service in 2010).
Other observations:
  • The motor coach emphasis for 2011 resulted in the second highest number of inspections - 1,217 conducted on buses.
  • Drivers were surveyed on logbook type. 86 percent of drivers use paper log books in the U.S. in 2011.
  • Vehicle out-of-service rates from Level I inspections were the second lowest on record for Roadcheck, at 22.8 percent.
Norwegian Bomber Obtained Fertilizer From a Polish Company
A Polish company sold chemical fertilizer to Norwegian bomber and gunman, Anders Behring Breivik but the transaction was entirely legal and police have made no arrests according to the Polish Internal Security Agency. Breivik killed 77 people in a bomb attack and shooting rampage that has stunned Norway. "According to our experts, the materials bought in Poland were not critical for the construction of the bomb," the deputy head of the ABW agency, Pawel Bialek, told a news conference. "At this stage, the information and materials we have do not indicate that the relations with the terrorist were anything other than commercial." Bialek said the owner of the company, which he did not name, was cooperating fully with the authorities in their investigation. He added that the firm had sold over 100 kg of one substance and several hundred grams of another. The transaction was made over the Internet and there is no evidence that Breivik ever visited Poland, Bialek said. Breivik also tried unsuccessfully to buy weapons in the Czech Republic, Bialek added. In a rambling, 1,500-page online manifesto, Breivik, who has confessed to the killings, portrays himself as a crusader defending Europe against a tide of Islam.
CDL Drivers Will Continue Carrying "Wallet Cards" Until 2014
The Federal Motor Carrier Safety Administration (FMCSA) published a proposal, to keep in effect until January 30, 2014, the requirement that interstate drivers subject to the commercial driver's license (CDL) regulations and the federal physical qualification requirements must retain a paper copy of the medical examiner's certificate (i.e., wallet card). Interstate motor carriers would also be required to retain a copy of the medical certificate in the driver qualification files. This action is being taken to ensure the medical qualification of CDL holders until all states are able to post the medical self-certification and medical examiner's certificate data on the Commercial Driver's License Information System (CDLIS) driver record. This proposed rule would not, however, extend the mandatory dates for states to comply with the requirement to collect and to post to the CDLIS driver record data from a CDL holder's medical self-certification and medical examiner's certificate.
New Senate Bill to Delay EPA Boiler Rule Introduced
A bipartisan Senate bill to delay EPA's controversial industrial boiler/incinerator rulemaking by 15 months, was unveiled in the Senate this week. The bill would require EPA to rework its current rules, an action taken by the agency under court order, but which even EPA acknowledges doesn't meet the mark when it comes to mandating industry use "maximum achievable technology" to control emissions such as mercury. The bill would give companies five years to comply with the new rules, two more years than originally proposed by EPA, and the agency is required to consider the cost, feasibility and impact on jobs of the reworked rules. The six Senators, led by Senator Susan Collins (R-ME), agree with industry critics of the agency rulemaking who say the extension is necessary so EPA can "get the rule right and for businesses to plan for capital expenses," which the group said could amount to "billions." EPA first issued the rules in February in compliance with a court order, but because the rule was so different from a previous version, the agency said it would halt implementation to receive additional public comment.
Minnesota Court of Appeals Rules Spray Drift Constitutes Trespassing
A Minnesota state appellate court ruled that spray drift from pesticide applications could be considered "trespass" and a "nuisance" in certain circumstances under state law. Organic farmers in Minnesota filed a civil suit alleging the Paynesville Farmers Union Cooperative Oil Company sprayed a pesticide that drifted from targeted fields to their adjacent organic fields, thus preventing them from selling their crops as organic. The district court originally dismissed the organic farmers' claims; however, the appeals court reversed that decision to rule that pesticide drifting from one farm to another may in some circumstances constitute a trespass. This decision marks the first Minnesota case that has ruled unwanted pesticide drift from a targeted field to an organic field as trespass, yet courts in other states have made similar rulings. It is worth noting that the defendants were cited five times previously by the Minnesota Department of Agriculture for violating state pesticide laws over a 10-year period. The court had noted that the defendant had repeatedly allowed for "errant overspray" during application.
Top Training Violations Cited by OSHA in 2010
During the year 2010, OSHA issued a total of 190,891 citations for a total initial penalty amount of $245,042,593. The following table shows information on the top ten general industry standards cited for violations of training/employee information requirements.
OSHA Top 10 Frequently Cited General Industry Training Requirements in 2010
Standard
Number of citations
Initial penalty amount
1. Hazard communications
3,914
1,474,094
2. Powered industrial trucks
3,503
3,013,032
3. Respirators
2,218
415,285
4. Lockout/tagout
1,165
1,333,262
5. PPE
953
286,625
6. Fire extinguishers
855
488,007
7. Bloodborne pathogens
648
279,825
8. Electrical safety training
246
2,187,485
9. Hexavalent chromium
217
201,942
10. Occupational noise
213
114,000
Lightsquared-GPS Standoff A "Serious Threat"
Developments in Lightsquared's efforts to deploy a terrestrial-based system that would take broadband Internet coast to coast, has garnered a lot of attention over the past year. The deployment of Lightsquared's system would at best compromise, and at worst render inoperable, global positioning signals for virtually everyone in the country. Lightsquared is a well-financed entity that has spent billions of dollars developing a system that would bring broadband Internet to the entire country. Some 40,000 base stations would be deployed across the country. The Federal Communications Commission took the virtually unprecedented leap of giving Lightsquared permission to move ahead with infrastructure installation even as interference studies were being conducted.
GPS companies formed a working group and tested the effect that Lightsquared's system would have on GPS. The conclusion was that all GPS signals would be compromised, and high accuracy GPS would be particularly vulnerable. Lightsquared's recent offer to "restrict" its signal to its lower band allocation does nothing long term to solve the problem. There's really no alternative spectrum for GPS to move into, and even if possible, a massive reconfiguration of the signal could render current GPS receivers useless and would cost the industry billions of dollars from the manufacturer of technology all the way down to the producer.
The issue is currently in limbo, but it certainly won't stay that way for long with so much money and political capital sitting on the table. Agriculture is not alone in this situation; construction, engineering, and consumer GPS companies are all affected. Click here to learn more about the issue, including what to say to your representatives.
Ban is Lifted on Interest Checking for Businesses
With the one-year anniversary of the financial overhaul, many of the law's provisions are taking effect, including one allowing banks to pay interest on business checking accounts. Many banks including Capital One, Citibank, TD Bank, Regions Bank, and Wells Fargo expect to begin offering very soon. Fifth Third Bank, based in Cincinnati, said interest-earning checking for companies "is in the works."
Understanding Your Responsibilities When Using Temporary Drivers
Please note: This article is made possible by J.J. Keller & Associates, a valued partner of the Asmark Institute for over 22 years. We receive many calls over the course of each year with intentions to hire drivers from temporary employment services. Typically, the employer is looking to simplify their workload and paperwork. This should help outline the requirements associated with utilizing drivers from temporary agencies. Our thanks to J.J. Keller for their support over the years and for the use of this article.
The current driver shortage has led many motor carriers to utilize the services of driver staffing companies and owner-operators. This cost-effective means of bringing in equipment and drivers to relieve capacity has opened a "can of worms" for many when it comes to safety compliance.
Let's begin with some basics. Compliance is always based on the USDOT number. Staffing agencies are not typically regulated as motor carriers, so compliance always rests on the motor carrier contracting with them. The same is true of leased owner-operators operating under a motor carrier's authority.
Two areas that motor carriers often mistakenly think the service provider or owner-operator is responsible for compliance, include the driver's qualification (DQ) file and DOT drug and alcohol testing records.
Who needs a DQ file? Here are a few points to remember:
  1. If you are the only motor carrier utilizing a driver over a period of 7 consecutive days, you must create a DQ file on the individual as you would any new hire. You cannot use a "common, shared DQ file" at a staffing service. It must be created from scratch under your carrier's authority (i.e., your name on driver application and Safety Performance History inquiries), even if the staffing service is contracted to compile the information for you. After the driver's service ends, you need to retain the DQ file for at least 3 years since it is your safety record.
  2. You may only claim a multiple-employer exception (i.e., 49 CFR §391.63 or §391.65) which is an abbreviated recordkeeping in lieu of an entire DQ file, if the driver is working for at least one other motor carrier in a period of 7 consecutive days, including days off. If he or she works in a non-regulated capacity at another carrier or at a non-motor carrier, it does not count as more than one employer for the exception.
    • The multiple-employer exceptions do not negate the employer from asking the driver to list employers as prescribed in §383.35 if the driver is commercially licensed. If a driver application (§391.21) is not generated due to a multiple-employer exception, the motor carrier still must ask for the information.
    • The records required under both the exceptions must be kept for the duration of employment, plus 3 years after it ceases.
    • If the circumstances change and the criteria are no longer met, you must fully qualify the driver at that point.
  3. Motor carriers do not have to use the exceptions above and may fully qualify the driver if they so elect.
What about drug and alcohol testing? Many motor carriers assume that the recordkeeping breaks they receive under Part 391 for multiple-employer drivers carry over into their DOT drug and alcohol programs under Part 382. This is untrue.
This temporary driver's participation in your DOT random program is to be treated no differently than a company driver. This is true even if the driver is in other DOT testing programs or the staffing service sets up its own pool with the drivers it assigns. A driver must be in as many DOT random pools as carriers he/she is working for (i.e., as many DOT numbers assigned) and must remain in the carrier's pool as long as the carrier expects to utilize him or her. In addition, all other facets of your testing program apply (i.e., issuance of policy/educational materials, pre-employment test, etc.).
In fact, a DOT interpretation to §391.63 states the motor carrier is still responsible for the DOT drug and alcohol checks - even if the carrier is not responsible for obtaining the Safety Performance History data under §391.23 due to claiming a multiple-employer exception. Even though the motor carrier is not responsible for the general employment verification and DOT accident history that are unique to §391.23, it must still pursue the DOT drug and alcohol testing history to be in compliance with §382.413/§40.25(b).
This investigation would require contacting all former DOT-regulated "employers" that used the driver in the past 3 years. The definition of employee/employer for the USDOT had nothing to do with paychecks. If the driver was operating a vehicle under someone's USDOT number, he/she should have been under the company's safety program, including participation in the DOT drug and alcohol testing program. This could be quite a few checks if the driver had numerous assignments through a staffing service or as an owner-operator.
Food for Thought
You may receive Safety Performance History checks on these temporary drivers. You are obligated to respond as you would a driver on staff. You have record of this driver (i.e., accident register, DOT testing papers) since he or she was operating vehicles under your carrier's name and USDOT number.
Atlas Shrugged Quote
Most Quotable: "America's abundance was created not by public sacrifices to the common good, but by the productive genius of free men who pursued their own personal interests and the making of their own private fortunes. They did not starve the people to pay for America's industrialization. They gave the people better jobs, higher wages, and cheaper goods with every new machine they invented, with every scientific discovery or technological advance - and thus the whole country was moving forward and profiting, not suffering, every step of the way." Quoted from Ayn Rand's novel Atlas Shrugged first published in 1957.
2011 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.
2011 Safety School - Register Today!
If you are in charge of safety and compliance at your retail plant, you should be registering and planning to attend the 2011 National Agronomic Environmental Health & Safety School to be held at the Doubletree Hotel in Bloomington, IL. The agenda has been posted for the August 23-24 meeting. Go to www.naehss.org to view the agenda and to register. There are top-level speakers from the USDOT and FMCSA discussing nurse tank inspections and motor vehicle enforcement, and a speaker from USEPA explaining the final Spill Prevention Control & Countermeasure (SPCC) regulations that will impact retailers and farmers who store fuel on site. This is a top-quality meeting you won't want to miss!
OISC Sends 2nd Notice on Nurse Tank Repairs
In the early 90's the State of Indiana authorized welded repairs on nurse tanks outside of the provisions of the National Board Inspection Code as required by the DOT regulations. Earlier this year, some retailers who own or operate anhydrous ammonia nurse tanks in Indiana had been informed by DOT enforcement personnel these welded repairs on nurse tanks are not in compliance with DOT regulations and the nurse tanks in question could be placed out of service. The Agribusiness Council of Indiana (ACI) contacted The Fertilizer Institute (TFI) for assistance in resolving this matter. While many of these tanks were repaired by an authorized R-Stamp welder, the welded repairs did not follow the National Board of Boiler and Pressure Vessel's Form R-1.
The Agribusiness Council of Indiana, working with TFI, the Office of the Indiana State Chemist (OISC) and the Agricultural Retailers Association (ARA), developed a plan to identify the state of nurse tank welded repairs in Indiana and take corrective action. The Indiana nurse tank plan for corrective action was discussed with DOT. DOT has advised that the plan is an appropriate course of action. The Agribusiness Council of Indiana and the Office of the Indiana State Chemist will do extensive outreach to nurse tank owners or operators in the State of Indiana to ensure compliance with the plan.
Nurse tank owners or operators in the State of Indiana are advised to keep a copy of this plan on file. Should any enforcement issues arise, please notify Mark Shublak at the Agribusiness Council of Indiana immediately. Click here for the Action Plan and here for a memo from the Office of the Indiana State Chemist.
DHS Chemical Sector Security Summit
The fifth annual Chemical Sector Security Summit was held in Baltimore, Maryland in early July. Melissa Iskra, Manager of Corporate Relations for the Asmark Institute, attended the event outlining CFATS with updates on ammonium nitrate, terrorism, new regulations and recent suspicious activity. Close to 600 participants attended the summit that was sponsored by the U.S. Department of Homeland Security and the Chemical Sector Coordinating Council. The summit was opened with the Honorable Jane Holl Lute, Deputy Secretary of DHS, discussing the current security landscape and outlook for the future. Participants learned about upcoming inspections and were given a chance for private, more in-depth breakout sessions, to inquire about their own situations and facilities. The summit provides direction to many retailers and industry representatives as to what DHS has in store for the agricultural community and how to better understand the compliance trends with regard to CFATS. DHS representatives were on hand to answer any questions and guide participants through current and future legislation. For more information or to view the power point presentations, please click here to visit the DHS website.
Research Concludes Atrazine is a Non-Threat to Human Health
Recent research published by the National Institute of Health and the Uniformed Services University of the Health Sciences concluded that atrazine never caused cancer, and it still does not pose a cancer threat. The ongoing Agricultural Health Study (AHS) found no link between exposure to atrazine and overall cancer risk. The authors concluded that generally, there was no consistent evidence of an association between atrazine use and any cancer site. The study draws on the AHS's prospective cohort of over 57,000 licensed pesticide applicators (and their families), and is an extension of an earlier AHS analysis of cancer risk among self-reported atrazine users with six years of follow-up. Among approximately 36,000 applicators who reported using atrazine, just over 3,000 had developed cancer, which amounts to no increase in overall cancer risk between users in the highest exposure compared to the lowest exposure categories. These results are consistent with published literature that indicates this herbicide has no adverse effect on any living organism, except weeds. Click here to view the article.
Annual State Association's Legislative Fly-In
Agribusiness association leaders from Illinois, Montana, South Dakota, Washington, Wyoming, Kansas, Missouri and Michigan were in Washington, D.C. last week for their annual legislative fly-in. Melissa Iskra, Manager of Corporate Relations for the Asmark Institute, participated in the event. While visiting the nation's capital, the delegates received an in-depth briefing on legislative issues including the agricultural hours of service exemption, nutrient criteria, security, endangered species, National Pollutant Discharge Elimination System (NPDES) permits and biotechnology. The briefing session included issue presentations by The Fertilizer Institute (TFI), the Agricultural Retailers Association (ARA), CropLife America and the Biotechnology Industry Organization (BIO).
OSHA Proposes Changes to Injury Reporting, Recordkeeping Exemptions
OSHA is proposing to update the list of industries that are partially exempt from maintaining records of occupational injuries on the basis of more recent Days Away, Restricted or Transferred (DART) rates contained in the North American Industry Classification System (NAICS). It is also proposing requirements for employers to report to OSHA, within eight hours, all work-related fatalities and all work-related, in-patient hospitalizations; and within 24 hours, all work-related amputations.
OSHA's current regulation partially exempts certain lower-hazard industries classified in Standard Industrial Classification (SIC) codes 52 through 89 from injury and illness recordkeeping requirements. The current list of partially exempt industries is based on injury and illness data compiled by the Bureau of Labor Statistics (BLS) for 1997-99. OSHA is proposing to revise the list of partially exempt industries using the North American Industry Classification System.
OSHA is also proposing to revise Section 1904.39, which currently requires an employer to report to OSHA, within eight hours, all work-related fatalities and in-patient hospitalizations of three or more employees. The proposed rule would require an employer to report to OSHA, within eight hours, all work-related fatalities and all work-related in-patient hospitalizations; and within 24 hours, all work-related amputations. Comments must be submitted by September 20, 2011. Click here for more information.
IEMA Material Safety Data Sheet (MSDS) Request
Companies in Illinois that submitted a Tier 2 report to the Illinois Emergency Management Agency (IEMA) recently received a request for a copy of the most recent MSDS for each product reported for 2010. IEMA has been challenged in court by an environmental group and are under a court order to make MSDS sheets available to the public in case anyone submits a request to see a company's Tier 2 report. If you remember, the SARA Tier II Report is commonly referred to as the "Community Right-to-Know." Jean Payne and Kevin Runkle with IFCA have been successful in working with IEMA to extend the deadline from August 15, 2011 to December 31, 2011.
IEMA is requiring each person that submitted a 2010 Tier 2 report to log on to their last submission and attach a copy of the most current copy of the MSDS for each product reported for 2010. While we can't do this for you, we can make the task easier. Current MSDS in PDF format can be accessed to help with your download and submittal to IEMA. If you need assistance submitting your MSDS, contact Lori Canterbury with IEMA at 217-558-0559 or tier2mgr@illinois.gov.
For your convenience, a copy of your Master Report (contains the list of products to be submitted for your 2010 Tier 2) is available to you from our website by accessing Snapshots and clicking on the "Last Prepared" Date under SARA in the Facility Info section.
U.S. Senators Throwing Roadblocks at NPDES Fix
HR 872 is legislation in Congress to eliminate the need for pesticide applicators to get a NPDES permit in order to apply pesticides on or near water. The bill passed the U.S. House with a significant majority, but is experiencing roadblocks in the Senate. Senator Ben Cardin (D-MD) and Senator Barbara Boxer (D-CA) have joined forces to block a vote on HR 872 even though it has already passed out of the Senate Ag Committee. They claim that the bill will weaken water quality protections. Hopefully support in the senate can be obtained to resolve this issue before the October 31, 2011 effective date of the NPDES permit requirement.
Restricted-Use Pesticides Emphasize Safety and Responsible Application
CropLife America issued this notice on the use and sale of restricted-use pesticides last week. Applicators play an important role in guaranteeing the safe application of crop protection products in accordance with the label instructions. In addition to FIFRA general-use product labels, there is another class of crop protection products named restricted-use pesticides (RUPs) that require further and highly specified applicator training, and require the dealer to fully screen potential buyers and applicators prior to the sale. Pesticide dealers are required to prepare and maintain specific record information for each sale or distribution of a RUP, guaranteeing that RUPs are only applied by properly licensed certified applicators or consultants.
Pesticide applicators should not attempt to purchase or use RUPs that are outside the scope of their license as RUP training and licensing is specific to each class of pesticide (i.e. herbicide, insecticide, fungicide). For example, it is considered unlawful distribution to sell a RUP rodenticide to a certified applicator licensed within the agriculture herbicide category; the rodenticide can only be distributed to a certified applicator within the agriculture vertebrate pest category. RUP dealers are encouraged to ask pertinent questions about intended use to help prevent potential misuse, and they have the right to refuse a sale if they do not believe the buyer is properly licensed to use the product. This is just one example of the many stewardship steps the industry takes to keep modern agriculture safe.
Roadcheck 2011: Lowest OOS Rate Since 1991
Results from Roadcheck 2011, the three-day, commercial vehicle safety enforcement and education campaign organized annually by the Commercial Vehicle Safety Alliance (CVSA), reveal that the commercial motor carrier and motor coach industries continue to improve the maintenance and safety of their operations, with overall out-of-service (OOS) rates being the lowest since Roadcheck began in 1991.
Nearly 8,000 CVSA and FMCSA certified inspectors at 2,550 locations across North America performed 70,712 truck and bus inspections in 72 hours. Inspectors focused on the North American Standard Level I inspection, motor coach inspections, hours-of-service logbooks and household goods carriers.
Once again, hours-of-service logbook violations lead overwhelmingly as a percentage of all driver violations cited (50.6 percent of all driver out-of-service violations). The hours-of-service rules are designed to reduce driver fatigue which may be a contributing factor in large truck and bus crashes. Inspectors also queried drivers of their use of electronic logging devices and found that 14 percent were using them.
An additional emphasis was placed on identifying carriers of household goods (HHG) operating "under-the-radar" by using improperly marked rental vehicles and/or operating as a for-hire property carrier rather than HHG carrier. The twelve states that participated in the HHG focus activity identified 32 carriers that required enforcement action.
Roadcheck data from 2011 shows the overall vehicle compliance rate at 80.7 percent (80.0 percent in 2010), with an overall driver compliance rate of 95.8 percent (95.6 percent from last year). For NAS Level I inspections, the compliance rates were up to 77.2 percent for vehicles (76.7 percent in 2010) and 96.3 percent for drivers (unchanged from 2010). In addition, there were 296 fewer safety belt violations in 2011 (863 vs. 1,159 in 2010).
Roadcheck 2011 facts:
Driver results for the vehicle types were as follows:
  • All inspections: 96.0 percent of drivers passed, and 4.0 percent were placed out of service (4.4 percent were out of service in 2010).
  • All Level I inspections: 96.3 percent of drivers passed, and 3.7 percent were placed out of service (3.7 percent were out of service in 2010).
  • HazMat: 97.5 percent of drivers passed, and 2.5 percent were placed out of service (2.5 percent were out of service in 2010).
  • Passenger carrying vehicles: 97.4 percent of drivers passed, and 2.6 percent were placed out of service in 2011 (3.6 percent were placed out of service in 2010).
Vehicle results were as follows:
  • All inspections: 81.7 percent of vehicles passed, and 18.3 percent were placed out of service (20.0 percent were out of service in 2010).
  • All Level I inspections: 77.4 percent of vehicles passed, and 22.8 percent were placed out of service (23.3 percent were out of service in 2010).
  • HazMat: 83.7 percent of vehicles passed the inspection, and 17.9 percent were placed out of service (16.3 percent were out of service in 2010).
  • Passenger carrying vehicles: 91.3 percent of vehicles passed the inspection, and 8.7 percent were placed out of service (9.0 percent were out of service in 2010).
Other observations:
  • The motor coach emphasis for 2011 resulted in the second highest number of inspections - 1,217 conducted on buses.
  • Drivers were surveyed on logbook type. 86 percent of drivers use paper log books in the U.S. in 2011.
  • Vehicle out-of-service rates from Level I inspections were the second lowest on record for Roadcheck, at 22.8 percent.
Norwegian Bomber Obtained Fertilizer From a Polish Company
A Polish company sold chemical fertilizer to Norwegian bomber and gunman, Anders Behring Breivik but the transaction was entirely legal and police have made no arrests according to the Polish Internal Security Agency. Breivik killed 77 people in a bomb attack and shooting rampage that has stunned Norway. "According to our experts, the materials bought in Poland were not critical for the construction of the bomb," the deputy head of the ABW agency, Pawel Bialek, told a news conference. "At this stage, the information and materials we have do not indicate that the relations with the terrorist were anything other than commercial." Bialek said the owner of the company, which he did not name, was cooperating fully with the authorities in their investigation. He added that the firm had sold over 100 kg of one substance and several hundred grams of another. The transaction was made over the Internet and there is no evidence that Breivik ever visited Poland, Bialek said. Breivik also tried unsuccessfully to buy weapons in the Czech Republic, Bialek added. In a rambling, 1,500-page online manifesto, Breivik, who has confessed to the killings, portrays himself as a crusader defending Europe against a tide of Islam.
CDL Drivers Will Continue Carrying "Wallet Cards" Until 2014
The Federal Motor Carrier Safety Administration (FMCSA) published a proposal, to keep in effect until January 30, 2014, the requirement that interstate drivers subject to the commercial driver's license (CDL) regulations and the federal physical qualification requirements must retain a paper copy of the medical examiner's certificate (i.e., wallet card). Interstate motor carriers would also be required to retain a copy of the medical certificate in the driver qualification files. This action is being taken to ensure the medical qualification of CDL holders until all states are able to post the medical self-certification and medical examiner's certificate data on the Commercial Driver's License Information System (CDLIS) driver record. This proposed rule would not, however, extend the mandatory dates for states to comply with the requirement to collect and to post to the CDLIS driver record data from a CDL holder's medical self-certification and medical examiner's certificate.
New Senate Bill to Delay EPA Boiler Rule Introduced
A bipartisan Senate bill to delay EPA's controversial industrial boiler/incinerator rulemaking by 15 months, was unveiled in the Senate this week. The bill would require EPA to rework its current rules, an action taken by the agency under court order, but which even EPA acknowledges doesn't meet the mark when it comes to mandating industry use "maximum achievable technology" to control emissions such as mercury. The bill would give companies five years to comply with the new rules, two more years than originally proposed by EPA, and the agency is required to consider the cost, feasibility and impact on jobs of the reworked rules. The six Senators, led by Senator Susan Collins (R-ME), agree with industry critics of the agency rulemaking who say the extension is necessary so EPA can "get the rule right and for businesses to plan for capital expenses," which the group said could amount to "billions." EPA first issued the rules in February in compliance with a court order, but because the rule was so different from a previous version, the agency said it would halt implementation to receive additional public comment.
Minnesota Court of Appeals Rules Spray Drift Constitutes Trespassing
A Minnesota state appellate court ruled that spray drift from pesticide applications could be considered "trespass" and a "nuisance" in certain circumstances under state law. Organic farmers in Minnesota filed a civil suit alleging the Paynesville Farmers Union Cooperative Oil Company sprayed a pesticide that drifted from targeted fields to their adjacent organic fields, thus preventing them from selling their crops as organic. The district court originally dismissed the organic farmers' claims; however, the appeals court reversed that decision to rule that pesticide drifting from one farm to another may in some circumstances constitute a trespass. This decision marks the first Minnesota case that has ruled unwanted pesticide drift from a targeted field to an organic field as trespass, yet courts in other states have made similar rulings. It is worth noting that the defendants were cited five times previously by the Minnesota Department of Agriculture for violating state pesticide laws over a 10-year period. The court had noted that the defendant had repeatedly allowed for "errant overspray" during application.
Top Training Violations Cited by OSHA in 2010
During the year 2010, OSHA issued a total of 190,891 citations for a total initial penalty amount of $245,042,593. The following table shows information on the top ten general industry standards cited for violations of training/employee information requirements.
OSHA Top 10 Frequently Cited General Industry Training Requirements in 2010
Standard
Number of citations
Initial penalty amount
1. Hazard communications
3,914
1,474,094
2. Powered industrial trucks
3,503
3,013,032
3. Respirators
2,218
415,285
4. Lockout/tagout
1,165
1,333,262
5. PPE
953
286,625
6. Fire extinguishers
855
488,007
7. Bloodborne pathogens
648
279,825
8. Electrical safety training
246
2,187,485
9. Hexavalent chromium
217
201,942
10. Occupational noise
213
114,000
Lightsquared-GPS Standoff A "Serious Threat"
Developments in Lightsquared's efforts to deploy a terrestrial-based system that would take broadband Internet coast to coast, has garnered a lot of attention over the past year. The deployment of Lightsquared's system would at best compromise, and at worst render inoperable, global positioning signals for virtually everyone in the country. Lightsquared is a well-financed entity that has spent billions of dollars developing a system that would bring broadband Internet to the entire country. Some 40,000 base stations would be deployed across the country. The Federal Communications Commission took the virtually unprecedented leap of giving Lightsquared permission to move ahead with infrastructure installation even as interference studies were being conducted.
GPS companies formed a working group and tested the effect that Lightsquared's system would have on GPS. The conclusion was that all GPS signals would be compromised, and high accuracy GPS would be particularly vulnerable. Lightsquared's recent offer to "restrict" its signal to its lower band allocation does nothing long term to solve the problem. There's really no alternative spectrum for GPS to move into, and even if possible, a massive reconfiguration of the signal could render current GPS receivers useless and would cost the industry billions of dollars from the manufacturer of technology all the way down to the producer.
The issue is currently in limbo, but it certainly won't stay that way for long with so much money and political capital sitting on the table. Agriculture is not alone in this situation; construction, engineering, and consumer GPS companies are all affected. Click here to learn more about the issue, including what to say to your representatives.
Ban is Lifted on Interest Checking for Businesses
With the one-year anniversary of the financial overhaul, many of the law's provisions are taking effect, including one allowing banks to pay interest on business checking accounts. Many banks including Capital One, Citibank, TD Bank, Regions Bank, and Wells Fargo expect to begin offering very soon. Fifth Third Bank, based in Cincinnati, said interest-earning checking for companies "is in the works."
Understanding Your Responsibilities When Using Temporary Drivers
Please note: This article is made possible by J.J. Keller & Associates, a valued partner of the Asmark Institute for over 22 years. We receive many calls over the course of each year with intentions to hire drivers from temporary employment services. Typically, the employer is looking to simplify their workload and paperwork. This should help outline the requirements associated with utilizing drivers from temporary agencies. Our thanks to J.J. Keller for their support over the years and for the use of this article.
The current driver shortage has led many motor carriers to utilize the services of driver staffing companies and owner-operators. This cost-effective means of bringing in equipment and drivers to relieve capacity has opened a "can of worms" for many when it comes to safety compliance.
Let's begin with some basics. Compliance is always based on the USDOT number. Staffing agencies are not typically regulated as motor carriers, so compliance always rests on the motor carrier contracting with them. The same is true of leased owner-operators operating under a motor carrier's authority.
Two areas that motor carriers often mistakenly think the service provider or owner-operator is responsible for compliance, include the driver's qualification (DQ) file and DOT drug and alcohol testing records.
Who needs a DQ file? Here are a few points to remember:
  1. If you are the only motor carrier utilizing a driver over a period of 7 consecutive days, you must create a DQ file on the individual as you would any new hire. You cannot use a "common, shared DQ file" at a staffing service. It must be created from scratch under your carrier's authority (i.e., your name on driver application and Safety Performance History inquiries), even if the staffing service is contracted to compile the information for you. After the driver's service ends, you need to retain the DQ file for at least 3 years since it is your safety record.
  2. You may only claim a multiple-employer exception (i.e., 49 CFR §391.63 or §391.65) which is an abbreviated recordkeeping in lieu of an entire DQ file, if the driver is working for at least one other motor carrier in a period of 7 consecutive days, including days off. If he or she works in a non-regulated capacity at another carrier or at a non-motor carrier, it does not count as more than one employer for the exception.
    • The multiple-employer exceptions do not negate the employer from asking the driver to list employers as prescribed in §383.35 if the driver is commercially licensed. If a driver application (§391.21) is not generated due to a multiple-employer exception, the motor carrier still must ask for the information.
    • The records required under both the exceptions must be kept for the duration of employment, plus 3 years after it ceases.
    • If the circumstances change and the criteria are no longer met, you must fully qualify the driver at that point.
  3. Motor carriers do not have to use the exceptions above and may fully qualify the driver if they so elect.
What about drug and alcohol testing? Many motor carriers assume that the recordkeeping breaks they receive under Part 391 for multiple-employer drivers carry over into their DOT drug and alcohol programs under Part 382. This is untrue.
This temporary driver's participation in your DOT random program is to be treated no differently than a company driver. This is true even if the driver is in other DOT testing programs or the staffing service sets up its own pool with the drivers it assigns. A driver must be in as many DOT random pools as carriers he/she is working for (i.e., as many DOT numbers assigned) and must remain in the carrier's pool as long as the carrier expects to utilize him or her. In addition, all other facets of your testing program apply (i.e., issuance of policy/educational materials, pre-employment test, etc.).
In fact, a DOT interpretation to §391.63 states the motor carrier is still responsible for the DOT drug and alcohol checks - even if the carrier is not responsible for obtaining the Safety Performance History data under §391.23 due to claiming a multiple-employer exception. Even though the motor carrier is not responsible for the general employment verification and DOT accident history that are unique to §391.23, it must still pursue the DOT drug and alcohol testing history to be in compliance with §382.413/§40.25(b).
This investigation would require contacting all former DOT-regulated "employers" that used the driver in the past 3 years. The definition of employee/employer for the USDOT had nothing to do with paychecks. If the driver was operating a vehicle under someone's USDOT number, he/she should have been under the company's safety program, including participation in the DOT drug and alcohol testing program. This could be quite a few checks if the driver had numerous assignments through a staffing service or as an owner-operator.
Food for Thought
You may receive Safety Performance History checks on these temporary drivers. You are obligated to respond as you would a driver on staff. You have record of this driver (i.e., accident register, DOT testing papers) since he or she was operating vehicles under your carrier's name and USDOT number.
Atlas Shrugged Quote
Most Quotable: "America's abundance was created not by public sacrifices to the common good, but by the productive genius of free men who pursued their own personal interests and the making of their own private fortunes. They did not starve the people to pay for America's industrialization. They gave the people better jobs, higher wages, and cheaper goods with every new machine they invented, with every scientific discovery or technological advance - and thus the whole country was moving forward and profiting, not suffering, every step of the way." Quoted from Ayn Rand's novel Atlas Shrugged first published in 1957.
2011 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.