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Newsletter
Volume 96
November 1, 2011
NPDES Permits Now Required
Comic
On October 31, 2011, U.S. EPA issued a final National Pollutant Discharge Elimination System (NPDES) Pesticide General Permit (PGP) for point source discharges from the application of pesticides to waters of the United States. This action was in response to a 2009 decision by the U.S. Sixth Circuit Court of Appeals (National Cotton Council, et al. v. EPA) in which the court vacated EPA's 2006 Final Rule on Aquatic Pesticides and found that point source discharges of biological pesticides, and chemical pesticides that leave a residue, into waters of the U.S. were pollutants under the Clean Water Act (CWA). As a result of the court's decision, NPDES permits are generally required for these types of discharges as of October 31, 2011. While the permit requirements must be met as of October 31st, Operators will be covered automatically under the PGP without submitting a Notice of Intent (NOI) for any discharges before January 12, 2012. To continue coverage after January 12, 2012, those operators who are required to submit NOIs will need to do so at least 10 days (or 30 days for discharges to National Marine Fisheries Service (NMFS) Listed Resources of Concern) prior to January 12, 2012. For the first 120 days that the permit is in effect, EPA will focus on providing compliance assistance and education of the permit requirements, rather than on enforcement actions.
U.S. EPA's final PGP covers operators that apply pesticides that result in discharges from the following use patterns: (1) mosquito and other flying insect pest control; (2) weed and algae control; (3) animal pest control; and (4) forest canopy pest control. The permit requires permittees to minimize pesticide discharges through the use of pest management measures and monitor for and report any adverse incidents. Some permittees are also required to submit NOIs prior to beginning to discharge and implement integrated pest management (IPM)-like practices. Recordkeeping and reporting requirements will provide valuable information to EPA and the public regarding where, when, and how much pesticides are being discharged to waters of the U.S. Pesticide application use patterns not covered by EPA's Pesticide General Permit may need to obtain coverage under an individual permit or alternative general permit if they result in point source discharges to waters of the U.S.
U.S. EPA's general permit will provide coverage for discharges in the areas where EPA is the NPDES permitting authority, which includes six states (Alaska, Idaho, Massachusetts, New Hampshire, New Mexico and Oklahoma) and Washington, D.C. In the remaining 44 states, the states are authorized to develop and issue the NPDES pesticide permits. Click here for EPA's NPDES website.
CropLife America has worked tirelessly trying to secure passage of legislation that would reduce or eliminate this redundant and costly regulation. The U.S. House of Representatives voted overwhelmingly this summer to eliminate the NPDES regulation. Since then, the U.S. Senate leadership has refused to allow the bill a simple up or down vote, despite the fact that the majority of U.S. Senators oppose the NPDES pesticide permit requirement. We want to go on record thanking the CropLife America team for all their efforts.
State Associations Meet to Share Ideas and Resources
Asmark Institute's Amber Duke, Vice President of Business Operations, and Melissa Iskra, Manager of Corporate Relations, attended the 32nd annual Out of Focus meeting with the State Association Executives earlier this month in Sonoma, California. Throughout the meeting, different State Association Executives presented information from their association and other national discussions on how to better serve their members. The meeting brought emphasis to the changing needs of the ag retailers, and how those needs would be changing in the future. Each state was encouraged to work together and use each other's resources. The Fertilizer Institute (TFI), Agricultural Retailers Association (ARA) and CropLife America (CLA) were all represented and stressed the importance of the national and state associations working together to help not only members but the agricultural industry. Asmark Institute was recognized in several presentations for playing a vital role in supporting the state and national associations, as well as the agricultural industry.
SPCC Compliance Deadline Extended for Farms
On October 18, 2011, U.S. EPA published a direct final rule that extended the compliance date by which farms must prepare or amend and implement their SPCC Plans to May 10, 2013. For SPCC purposes, a farm is defined as a facility on a tract of land devoted to the production of crops or raising of animals, including fish, which produced and sold, or normally would have produced and sold, $1,000 or more of agricultural products during a year. U.S. EPA is not extending the compliance date for any other facilities.
U.S. EPA believes that farms need additional time to come into compliance with the SPCC plan requirements due to the sheer number of farms throughout the United States. This rule is effective on November 7, 2011, without further notice, unless U.S. EPA receives adverse comments by November 2, 2011. Additional information about the rule is available by clicking here.
Supreme Court to Decide Whether to Take Health Care Case
The Supreme Court will use a November 1th private conference to decide whether it will consider the legality of the federal health care law. The court will also have to decide which specific case to take and could announce its plans as soon as November 14th. Many expect it to hear the suit brought by the 26 states.
Dust Issue Bites the Dust
U.S. EPA has decided against setting strict limits on coarse particles in the air. The Agency's review had many in the agricultural industry concerned about possible regulations placed on dust kicked up by cattle, tractors and trucks on unpaved roads. However, a recent letter from U.S. EPA Administrator Lisa Jackson to Senate Agriculture Committee Chairwoman Debbie Stabenow stated that, "Based on my consideration of the scientific record, analysis provided by EPA scientists and advice from the Clean Air Science Advisory Committee, I am prepared to propose the retention - with no revision - of the current coarse particle standard." Agriculture groups praised Jackson's decision while many environmental and public health groups are continuing to push EPA to establish stricter limits on both fine and coarse particles. If standards are increased, costly new control measures would be implemented despite the lack of a strong link between health problems and exposure to coarse particles. CropLife America (CLA) signed on with approximately 125 organizations opposing the farm dust rule.
Ag Groups Praise Legislation Clarifying Agricultural Hours of Service Exemption
The Fertilizer Institute (TFI) joined the Agricultural Retailers Association (ARA), the Agricultural and Food Transporters Conference (AFTC) of the American Trucking Association and the National Council of Farmer Cooperatives (NCFC) in voicing support for legislation that would clarify the agricultural hours of service exemption. Congressmen Sam Graves (R-Mo.) and Blaine Luetkemeyer (R-Mo.), along with 38 additional congressional co-sponsors, introduced the legislation which is intended to resolve questions regarding the applicability of the exemption. The exemption came into question in 2009 when DOT issued an interpretation of the regulations that resulted in transportation restrictions for certain farm supplies. The legislation introduced this week by Representatives Graves and Luetkemeyer amends aspects of the Motor Carrier Safety Improvement Act, which served as the basis for FMCSA's 2009 interpretation, to clarify the applicability of exemptions for agricultural products. Specifically, the legislation clarifies that the agricultural hours of service exemption is applicable to:
  • Drivers transporting agricultural commodities within a 100 air-mile radius;
  • Drivers transporting farm supplies for agricultural purposes from a wholesale or retail business to a farm or other location where the farm supplies are intended to be used within a 100 air-mile radius from the distribution point; or
  • Drivers transporting farm supplies from a wholesale location to a retail location so long as the transportation is within a 100 air-mile radius.
The Fertilizer Institute Unveils New Website
The Fertilizer Institute (TFI) has launched a new and improved version of its website, www.tfi.org. TFI invites you to take a virtual tour of its new online presence. If you didn't receive the e-mail or haven't had time to visit the new website, please take a moment to do so by clicking here.
Aqua Ammonia Tank Blast Lifted Tank From Its Pad
The aqua ammonia tank that exploded and injured three individuals in early October at a Goshen, Indiana fertilizer plant should serve as a lesson to all who handle the product. In this case, the tank was actually lifted off its pad and landed outside the containment area. St. Joseph's Hospital in Ft. Wayne, Indiana reported that two of the three injured in the explosion have been released, and the third who was listed earlier in critical condition is improving but is still hospitalized. The tank reportedly blew straight up in the air before landing upside down in a crater about 24 feet away. OSHA is investigating and expects an investigator's report may not be available for a couple of months. The situation began when a leak was noticed and the liquid level of the tank was lowered so the leak could be welded. In preparation for welding, the tank was being grounded and industry experts believe the grounding activity started an ammonia reaction.
FMCSA Fines American Welding & Tank Company Nearly $4 Million
U.S. DOT's Federal Motor Carrier Safety Administration (FMCSA) recently announced $3,876,000 in fines against American Welding & Tank, LLC (AWT) of Fremont, Ohio for violating federal hazardous materials safety standards. The company was fined for allegedly manufacturing and selling unsafe nurse tanks used to store and transport anhydrous ammonia. FMCSA reportedly conducted a safety investigation of AWT's Fremont manufacturing plant following reports of safety defects with recently manufactured nurse tanks. After investigating the company's welding practices and safety records, FMCSA claimed they discovered a clear pattern of AWT failing to manufacture, maintain, repair and sell nurse tanks that meet federal hazardous materials safety standards. Officials with AWT responded publicly disputing the action brought by FMCSA.
AWT released a statement saying "it is extremely disappointed at this arbitrary and unjustified action." The company said they were "not aware of even a single incidence of injury or property damage from a pinhole defect in any anhydrous ammonia tank manufactured by AWT." AWT reported in March 2011, "the DOT concluded a routine inspection that did not require the company to take a single corrective action. This inspection was followed by the company's annual successful ASME examination in May 2011."
AWT said publicly they "repair weld issues at no cost to customers for AWT tanks manufactured within the last three years, in accordance with their warranty policy, the longest in the industry." Customers with questions about their tanks can contact their AWT representative.
States Notify CDL Holders of New Medical Certificate Requirements
Colorado and Illinois are among the first states to notify CDL holders that effective January 30, 2012, all drivers applying for a CDL for the first time and all current CDL holders renewing, upgrading or replacing their CDL, must visit a CDL facility to declare their driver category and provide a copy of their medical examiner's certificate. The purpose of this new requirement is to create a national medical certificate database for interstate motor carriers. Each driver must appear in person at one of the 47 Illinois CDL facilities prior to January 30, 2014 to declare one of the following categories:
  1. Non-excepted interstate driver (NI)
  2. Excepted interstate driver (EI)
  3. Non-excepted intrastate driver (NA)
  4. Excepted intrastate driver (EA)
Keep in mind, all law enforcement officials in the U.S. will have access to the category you declare. If a driver is caught in an interstate operation and chose category 2-4, they will be considered medically out of compliance. First time drivers applying for a CDL are required to declare a category prior to January 30, 2012.
Postal Situation Cause for Concern
"In some communities, closing the Post Office would leave customers without feasible alternatives and access to postal services," said Senator Susan Collins, R-Maine, in last month's USPS hearings. "The fact is that maintaining all of our nation's rural post offices costs the Postal Service less than one percent of its total budget. That's not where the problem lies." Ending Saturday delivery is also included in the legislation, but Don Hall Jr., President and CEO of Hallmark Cards Inc., said that "customers in rural and remote areas would be especially hard hit because their mail delivery would take longer." According to Hall, "the solution to the financial crisis will not be found in failing to adequately serve small towns in remote areas. It's about the need to address major structural issues embedded deep within the business model itself."
NTSB Recommends Complete Phone Ban for CMV Drivers
The National Transportation Safety Board (NTSB) does not have rulemaking powers, but the agency is making recommendations to the Federal Motor Carrier Safety Administration (FMCSA) to "prohibit the use of both handheld and hands-free cellular telephones by all commercial driver's license holders while driving in commercial operations, except in emergencies." NTSB officials issued the recommendation to FMCSA in response to probable cause findings from a high-profile crash that led to 11 deaths in March 2010. Investigators determined that a 45-year-old truck driver was distracted by a cell phone leading up to a crash with a passenger van on Interstate 65 near Munfordville, KY. It is already illegal for a commercial vehicle operator to send text messages or emails while operating a truck, bus or train.
Comments Sought on Methyl Bromide Phase-out Permitting
U.S. EPA is seeking public comment from ag sectors demonstrating they have no viable or economical alternative to methyl bromide on the paperwork and regulatory burden associated with its program allowing pesticide registrants to apply for continued use permits for the chemical. The official notice can be found in the October 24, 2011 Federal Register, or by clicking here.
FHWA Changing How it Calculates VMT
With improved technology and better data collection methods now available in states across the country, the Federal Highway Administration (FHWA) has updated the way it calculates annual vehicle miles travelled (VMT) to ensure the agency more accurately captures key transportation data. VMT refers to the number of miles vehicles travel over a given time period, and is routinely used to measure traffic on America's roads and bridges and to calculate important statistics including traffic fatalities, fuel efficiency and air quality. In 2010, the number and rate of traffic fatalities fell to the lowest levels since 1949, despite a significant increase in the number of miles Americans drove during the year.
Nearly $1 Million in Penalties Issued by OSHA
OSHA has cited a trailer manufacturer's two divisions for 7 willful, 26 serious, 9 repeat and 4 other-than-serious violations totaling proposed penalties of $949,800. According to OSHA, compliance officers found workers exposed to unguarded machinery, fall hazards and accumulations of potentially hazardous dust, among other safety violations. The two divisions had previously been cited by OSHA for many of the same hazards that the agency found during its most recent inspection. Although the company had certified abatement of the prior hazardous conditions, many of the fixes were later abandoned to accommodate production. In addition, OSHA says that since 2008, at least 15 workers have suffered eye injuries requiring medical treatment and/or days away from work. Some of the willful violations involved failing to:
  • Provide fall protection for employees working on stacked trailers,
  • Provide adequate machine guarding to prevent "caught-in" or "caught-between injuries," and
  • Provide employees with proper eye protection during cutting and welding operations.
Some of the repeat violations included failing to:
  • Ensure that all spray booth areas were kept free from accumulated powder coating,
  • Guard several pieces of hazardous machinery, and
  • Have all necessary lockout/tagout procedures.
NLRB Delays Deadline for Posting New Notice
The National Labor Relations Board (NLRB) announced on October 5, 2011, that it will delay the requirement that most private employers in the U.S. post a controversial new notice until January 31, 2012. The Board had issued a Final Rule in August, requiring all employers covered by the National Labor Relations Act to post an 11" x 17" "Notification of Employee Rights under the National Labor Relations Act." The Notice informs employees of their legal rights under the National Labor Relations Act, and essentially gives them a road map for filing unfair labor practice charges against their employers. The Notice was, and is, strongly opposed by many employers, chambers of commerce and other organizations. The extension of the deadline came after a federal judge asked for more time to consider arguments raised in one of several lawsuits challenging the rule.
House Committee Approves Bill to Rein in NLRB
The House Education and Workforce Committee voted 23-16 last Wednesday to approve H.R. 3094, the Workforce Democracy and Fairness Act. The legislation would block an NLRB proposal to institute "ambush" union organizing elections held as little as 10 days after a union files a petition, instead requiring at least a 35-day waiting period. It would also counter a ruling in favor of micro-bargaining units - where a union could cherry pick certain departments or employees within a company - by limiting the board's authority to determine the size of a bargaining unit. It would also block a proposal to require companies to give workers' home addresses and e-mail addresses to union organizers.
Obama Rule Restricts Business Activities
On September 13th, the Obama administration proposed a rule to restrict government employees from accepting free invitations to trade association programs and events. The White House goal is to extend the lobbyist gift ban for political appointees to all executive branch employees and to explicitly single out trade associations since their "primary concern" is not education or professional development, but lobbying. The Office of Government Ethics confirmed that appointees and other government employees could still attend a trade association program if they are speaking in an official capacity or if they pay the registration fee to attend a conference. Trade unions will not face the same restriction. CropLife America has joined with the American Society of Association Executives in filing comments to the Federal Register opposing this rule.
ATA Reports Driver Turnover Increased Second Quarter
The turnover rate for over-the-road truck drivers rose to 79 percent in the second quarter, according to the latest American Trucking Association (ATA) Trucking Activity Report, marking the third quarter in a row of increased churn in the driver market. The turnover rate for drivers at large truckload fleets rose four basis points from the first quarter's rate of 75 percent, pushing the rate to its highest point since the second quarter of 2008. Turnover at small truckload companies and less-than-truckload (LTL) fleets actually fell in the quarter, dropping to 47 percent from 50 percent for small truckload firms and to 6 percent from 8 percent for LTLs.
Increased Role of Government in Family Finances
In 1983, about 28% of the population received a government check of some kind every month. This includes Social Security, Medicare, Medicaid, food stamps, disability payments and so on. The idea was for the government to help those in need and to ensure that people can live comfortably in their retirement. Today, the percentage of the population getting that check is 48.5% and by the end of the decade, that percentage is estimated to be close to 60%, as more of the Baby Boomers start receiving their retirement money. In the bluntest of terms it is not sustainable for 40% of the population to support the other 60%. According to Armada Business Intelligence, the most awkward discussion that will be taking place in the future will be over what to do with this growing imbalance. The situation that exists today is close to being unsustainable, and by all accounts, the situation will become far worse in the years ahead. It is by far the hardest set of cuts a government can be asked to make. Cuts will likely take place for those who are not as economically fragile. It is very likely that retirement money will be reduced for those who have alternative sources of income. Retirement ages will be extended for those who are in the workforce today. To have an impact on the situation today will mean that people getting social security will be taxed on it and those with the means to handle their own retirement may be deprived of their social security altogether.
Make Sure Your Random Pool is Accurate and Current
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 regarding drug testing. This should help outline the requirements associated with maintaining an accurate random pool list. Our thanks to J.J. Keller for their support over the years and for the use of this article.
The driver roster you compile for your DOT random testing program needs to accurately reflect the number of safety-sensitive positions at your motor carrier. If someone is omitted - or included when he should not be - it may skew the number of tests you complete for the calendar year. It also violates the Federal Motor Carrier Safety Regulations (FMCSRs). Who should you include? To understand who to include in your testing program, you must first look at a few definitions.
In Part 382, a safety-sensitive function surrounds the operation of a commercial motor vehicle (CMV) as defined in 383.5/382.107. The definition reads:
Commercial motor vehicle (CMV) means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:
  1. Has a gross combination weight rating or gross combination weight of 26,001 pounds or more, whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 10,000 pounds, whichever is greater; or
  2. Has a gross vehicle weight rating or gross vehicle weight of 26,001 pounds or more, whichever is greater; or
  3. Is designed to transport 16 or more passengers, including the driver; or
  4. Is of any size and is used in the transportation of hazardous materials as defined in this section.
This CMV definition is also used when determining if a commercial driver's license (CDL) is required.
A driver (i.e., employee) for the purpose of Part 382 is defined as anyone who operates, is in readiness to operate, or occasionally operates this CMV. It is important to note that applicability is based on the operation of this vehicle, not CDL licensing, although a CDL would be required to perform a safety-sensitive function. If someone holds a CDL, but does not utilize it at the motor carrier, he or she cannot be placed in the random pool.
Often overlooked drivers
Some carriers mistakenly believe that a driver does not have to be included in their DOT testing program if he or she is not a permanent, full-time company driver. Anyone operating a CDL type of commercial motor vehicle under your USDOT number needs to be included in your random pool. Consider the following categories of drivers often omitted from the driver roster:
  • Leased owner-operators
  • Drivers from a staffing service
  • Seasonal drivers
  • Part-time drivers
  • Occasional drivers with other job titles (mechanics, dispatchers, managers and other motor carrier personnel who fill-in or move CMVs around)
If a driver has more than one "employing" motor carrier that is subject to part 382, the driver must be in as many random selections as he or she is employed. "Employed" can be taken to mean operating a CMV on a motor carrier's behalf under its authority. It does not necessarily mean "employed" for Internal Revenue Service (IRS) or Department of Labor (DOL) purposes.
Crossing names off the list
When is it safe to remove a name from the driver list? A driver must remain in the random selection during a leave of absence, long vacation, or layoff - providing you are sure he or she will return. A temporary, occasional or intermittent driver must remain in your testing pool for so long as you expect that he or she might be utilized again. If you are sure that he or she will not return, you may remove the driver from your testing program.
Most Quotable:
The wonderful thing about a capitalist system is that it allows individuals the freedom to seek their own happiness, to do what they love, and to follow their own dreams. That's what Steve Jobs, President and CEO of Apple Computer did. He loved his work and he told us: "Your time is limited, so don't waste it living someone else's life. Don't be trapped by dogma-which is living with the results of other people's thinking. Don't let the noise of others' opinions drown out your own inner voice. And most important, have the courage to follow your heart and intuition." Well said, from a man who saw life as a celebration and whose life we should celebrate!
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.
NPDES Permits Now Required
Comic
On October 31, 2011, U.S. EPA issued a final National Pollutant Discharge Elimination System (NPDES) Pesticide General Permit (PGP) for point source discharges from the application of pesticides to waters of the United States. This action was in response to a 2009 decision by the U.S. Sixth Circuit Court of Appeals (National Cotton Council, et al. v. EPA) in which the court vacated EPA's 2006 Final Rule on Aquatic Pesticides and found that point source discharges of biological pesticides, and chemical pesticides that leave a residue, into waters of the U.S. were pollutants under the Clean Water Act (CWA). As a result of the court's decision, NPDES permits are generally required for these types of discharges as of October 31, 2011. While the permit requirements must be met as of October 31st, Operators will be covered automatically under the PGP without submitting a Notice of Intent (NOI) for any discharges before January 12, 2012. To continue coverage after January 12, 2012, those operators who are required to submit NOIs will need to do so at least 10 days (or 30 days for discharges to National Marine Fisheries Service (NMFS) Listed Resources of Concern) prior to January 12, 2012. For the first 120 days that the permit is in effect, EPA will focus on providing compliance assistance and education of the permit requirements, rather than on enforcement actions.
U.S. EPA's final PGP covers operators that apply pesticides that result in discharges from the following use patterns: (1) mosquito and other flying insect pest control; (2) weed and algae control; (3) animal pest control; and (4) forest canopy pest control. The permit requires permittees to minimize pesticide discharges through the use of pest management measures and monitor for and report any adverse incidents. Some permittees are also required to submit NOIs prior to beginning to discharge and implement integrated pest management (IPM)-like practices. Recordkeeping and reporting requirements will provide valuable information to EPA and the public regarding where, when, and how much pesticides are being discharged to waters of the U.S. Pesticide application use patterns not covered by EPA's Pesticide General Permit may need to obtain coverage under an individual permit or alternative general permit if they result in point source discharges to waters of the U.S.
U.S. EPA's general permit will provide coverage for discharges in the areas where EPA is the NPDES permitting authority, which includes six states (Alaska, Idaho, Massachusetts, New Hampshire, New Mexico and Oklahoma) and Washington, D.C. In the remaining 44 states, the states are authorized to develop and issue the NPDES pesticide permits. Click here for EPA's NPDES website.
CropLife America has worked tirelessly trying to secure passage of legislation that would reduce or eliminate this redundant and costly regulation. The U.S. House of Representatives voted overwhelmingly this summer to eliminate the NPDES regulation. Since then, the U.S. Senate leadership has refused to allow the bill a simple up or down vote, despite the fact that the majority of U.S. Senators oppose the NPDES pesticide permit requirement. We want to go on record thanking the CropLife America team for all their efforts.
State Associations Meet to Share Ideas and Resources
Asmark Institute's Amber Duke, Vice President of Business Operations, and Melissa Iskra, Manager of Corporate Relations, attended the 32nd annual Out of Focus meeting with the State Association Executives earlier this month in Sonoma, California. Throughout the meeting, different State Association Executives presented information from their association and other national discussions on how to better serve their members. The meeting brought emphasis to the changing needs of the ag retailers, and how those needs would be changing in the future. Each state was encouraged to work together and use each other's resources. The Fertilizer Institute (TFI), Agricultural Retailers Association (ARA) and CropLife America (CLA) were all represented and stressed the importance of the national and state associations working together to help not only members but the agricultural industry. Asmark Institute was recognized in several presentations for playing a vital role in supporting the state and national associations, as well as the agricultural industry.
SPCC Compliance Deadline Extended for Farms
On October 18, 2011, U.S. EPA published a direct final rule that extended the compliance date by which farms must prepare or amend and implement their SPCC Plans to May 10, 2013. For SPCC purposes, a farm is defined as a facility on a tract of land devoted to the production of crops or raising of animals, including fish, which produced and sold, or normally would have produced and sold, $1,000 or more of agricultural products during a year. U.S. EPA is not extending the compliance date for any other facilities.
U.S. EPA believes that farms need additional time to come into compliance with the SPCC plan requirements due to the sheer number of farms throughout the United States. This rule is effective on November 7, 2011, without further notice, unless U.S. EPA receives adverse comments by November 2, 2011. Additional information about the rule is available by clicking here.
Supreme Court to Decide Whether to Take Health Care Case
The Supreme Court will use a November 1th private conference to decide whether it will consider the legality of the federal health care law. The court will also have to decide which specific case to take and could announce its plans as soon as November 14th. Many expect it to hear the suit brought by the 26 states.
Dust Issue Bites the Dust
U.S. EPA has decided against setting strict limits on coarse particles in the air. The Agency's review had many in the agricultural industry concerned about possible regulations placed on dust kicked up by cattle, tractors and trucks on unpaved roads. However, a recent letter from U.S. EPA Administrator Lisa Jackson to Senate Agriculture Committee Chairwoman Debbie Stabenow stated that, "Based on my consideration of the scientific record, analysis provided by EPA scientists and advice from the Clean Air Science Advisory Committee, I am prepared to propose the retention - with no revision - of the current coarse particle standard." Agriculture groups praised Jackson's decision while many environmental and public health groups are continuing to push EPA to establish stricter limits on both fine and coarse particles. If standards are increased, costly new control measures would be implemented despite the lack of a strong link between health problems and exposure to coarse particles. CropLife America (CLA) signed on with approximately 125 organizations opposing the farm dust rule.
Ag Groups Praise Legislation Clarifying Agricultural Hours of Service Exemption
The Fertilizer Institute (TFI) joined the Agricultural Retailers Association (ARA), the Agricultural and Food Transporters Conference (AFTC) of the American Trucking Association and the National Council of Farmer Cooperatives (NCFC) in voicing support for legislation that would clarify the agricultural hours of service exemption. Congressmen Sam Graves (R-Mo.) and Blaine Luetkemeyer (R-Mo.), along with 38 additional congressional co-sponsors, introduced the legislation which is intended to resolve questions regarding the applicability of the exemption. The exemption came into question in 2009 when DOT issued an interpretation of the regulations that resulted in transportation restrictions for certain farm supplies. The legislation introduced this week by Representatives Graves and Luetkemeyer amends aspects of the Motor Carrier Safety Improvement Act, which served as the basis for FMCSA's 2009 interpretation, to clarify the applicability of exemptions for agricultural products. Specifically, the legislation clarifies that the agricultural hours of service exemption is applicable to:
  • Drivers transporting agricultural commodities within a 100 air-mile radius;
  • Drivers transporting farm supplies for agricultural purposes from a wholesale or retail business to a farm or other location where the farm supplies are intended to be used within a 100 air-mile radius from the distribution point; or
  • Drivers transporting farm supplies from a wholesale location to a retail location so long as the transportation is within a 100 air-mile radius.
The Fertilizer Institute Unveils New Website
The Fertilizer Institute (TFI) has launched a new and improved version of its website, www.tfi.org. TFI invites you to take a virtual tour of its new online presence. If you didn't receive the e-mail or haven't had time to visit the new website, please take a moment to do so by clicking here.
Aqua Ammonia Tank Blast Lifted Tank From Its Pad
The aqua ammonia tank that exploded and injured three individuals in early October at a Goshen, Indiana fertilizer plant should serve as a lesson to all who handle the product. In this case, the tank was actually lifted off its pad and landed outside the containment area. St. Joseph's Hospital in Ft. Wayne, Indiana reported that two of the three injured in the explosion have been released, and the third who was listed earlier in critical condition is improving but is still hospitalized. The tank reportedly blew straight up in the air before landing upside down in a crater about 24 feet away. OSHA is investigating and expects an investigator's report may not be available for a couple of months. The situation began when a leak was noticed and the liquid level of the tank was lowered so the leak could be welded. In preparation for welding, the tank was being grounded and industry experts believe the grounding activity started an ammonia reaction.
FMCSA Fines American Welding & Tank Company Nearly $4 Million
U.S. DOT's Federal Motor Carrier Safety Administration (FMCSA) recently announced $3,876,000 in fines against American Welding & Tank, LLC (AWT) of Fremont, Ohio for violating federal hazardous materials safety standards. The company was fined for allegedly manufacturing and selling unsafe nurse tanks used to store and transport anhydrous ammonia. FMCSA reportedly conducted a safety investigation of AWT's Fremont manufacturing plant following reports of safety defects with recently manufactured nurse tanks. After investigating the company's welding practices and safety records, FMCSA claimed they discovered a clear pattern of AWT failing to manufacture, maintain, repair and sell nurse tanks that meet federal hazardous materials safety standards. Officials with AWT responded publicly disputing the action brought by FMCSA.
AWT released a statement saying "it is extremely disappointed at this arbitrary and unjustified action." The company said they were "not aware of even a single incidence of injury or property damage from a pinhole defect in any anhydrous ammonia tank manufactured by AWT." AWT reported in March 2011, "the DOT concluded a routine inspection that did not require the company to take a single corrective action. This inspection was followed by the company's annual successful ASME examination in May 2011."
AWT said publicly they "repair weld issues at no cost to customers for AWT tanks manufactured within the last three years, in accordance with their warranty policy, the longest in the industry." Customers with questions about their tanks can contact their AWT representative.
States Notify CDL Holders of New Medical Certificate Requirements
Colorado and Illinois are among the first states to notify CDL holders that effective January 30, 2012, all drivers applying for a CDL for the first time and all current CDL holders renewing, upgrading or replacing their CDL, must visit a CDL facility to declare their driver category and provide a copy of their medical examiner's certificate. The purpose of this new requirement is to create a national medical certificate database for interstate motor carriers. Each driver must appear in person at one of the 47 Illinois CDL facilities prior to January 30, 2014 to declare one of the following categories:
  1. Non-excepted interstate driver (NI)
  2. Excepted interstate driver (EI)
  3. Non-excepted intrastate driver (NA)
  4. Excepted intrastate driver (EA)
Keep in mind, all law enforcement officials in the U.S. will have access to the category you declare. If a driver is caught in an interstate operation and chose category 2-4, they will be considered medically out of compliance. First time drivers applying for a CDL are required to declare a category prior to January 30, 2012.
Postal Situation Cause for Concern
"In some communities, closing the Post Office would leave customers without feasible alternatives and access to postal services," said Senator Susan Collins, R-Maine, in last month's USPS hearings. "The fact is that maintaining all of our nation's rural post offices costs the Postal Service less than one percent of its total budget. That's not where the problem lies." Ending Saturday delivery is also included in the legislation, but Don Hall Jr., President and CEO of Hallmark Cards Inc., said that "customers in rural and remote areas would be especially hard hit because their mail delivery would take longer." According to Hall, "the solution to the financial crisis will not be found in failing to adequately serve small towns in remote areas. It's about the need to address major structural issues embedded deep within the business model itself."
NTSB Recommends Complete Phone Ban for CMV Drivers
The National Transportation Safety Board (NTSB) does not have rulemaking powers, but the agency is making recommendations to the Federal Motor Carrier Safety Administration (FMCSA) to "prohibit the use of both handheld and hands-free cellular telephones by all commercial driver's license holders while driving in commercial operations, except in emergencies." NTSB officials issued the recommendation to FMCSA in response to probable cause findings from a high-profile crash that led to 11 deaths in March 2010. Investigators determined that a 45-year-old truck driver was distracted by a cell phone leading up to a crash with a passenger van on Interstate 65 near Munfordville, KY. It is already illegal for a commercial vehicle operator to send text messages or emails while operating a truck, bus or train.
Comments Sought on Methyl Bromide Phase-out Permitting
U.S. EPA is seeking public comment from ag sectors demonstrating they have no viable or economical alternative to methyl bromide on the paperwork and regulatory burden associated with its program allowing pesticide registrants to apply for continued use permits for the chemical. The official notice can be found in the October 24, 2011 Federal Register, or by clicking here.
FHWA Changing How it Calculates VMT
With improved technology and better data collection methods now available in states across the country, the Federal Highway Administration (FHWA) has updated the way it calculates annual vehicle miles travelled (VMT) to ensure the agency more accurately captures key transportation data. VMT refers to the number of miles vehicles travel over a given time period, and is routinely used to measure traffic on America's roads and bridges and to calculate important statistics including traffic fatalities, fuel efficiency and air quality. In 2010, the number and rate of traffic fatalities fell to the lowest levels since 1949, despite a significant increase in the number of miles Americans drove during the year.
Nearly $1 Million in Penalties Issued by OSHA
OSHA has cited a trailer manufacturer's two divisions for 7 willful, 26 serious, 9 repeat and 4 other-than-serious violations totaling proposed penalties of $949,800. According to OSHA, compliance officers found workers exposed to unguarded machinery, fall hazards and accumulations of potentially hazardous dust, among other safety violations. The two divisions had previously been cited by OSHA for many of the same hazards that the agency found during its most recent inspection. Although the company had certified abatement of the prior hazardous conditions, many of the fixes were later abandoned to accommodate production. In addition, OSHA says that since 2008, at least 15 workers have suffered eye injuries requiring medical treatment and/or days away from work. Some of the willful violations involved failing to:
  • Provide fall protection for employees working on stacked trailers,
  • Provide adequate machine guarding to prevent "caught-in" or "caught-between injuries," and
  • Provide employees with proper eye protection during cutting and welding operations.
Some of the repeat violations included failing to:
  • Ensure that all spray booth areas were kept free from accumulated powder coating,
  • Guard several pieces of hazardous machinery, and
  • Have all necessary lockout/tagout procedures.
NLRB Delays Deadline for Posting New Notice
The National Labor Relations Board (NLRB) announced on October 5, 2011, that it will delay the requirement that most private employers in the U.S. post a controversial new notice until January 31, 2012. The Board had issued a Final Rule in August, requiring all employers covered by the National Labor Relations Act to post an 11" x 17" "Notification of Employee Rights under the National Labor Relations Act." The Notice informs employees of their legal rights under the National Labor Relations Act, and essentially gives them a road map for filing unfair labor practice charges against their employers. The Notice was, and is, strongly opposed by many employers, chambers of commerce and other organizations. The extension of the deadline came after a federal judge asked for more time to consider arguments raised in one of several lawsuits challenging the rule.
House Committee Approves Bill to Rein in NLRB
The House Education and Workforce Committee voted 23-16 last Wednesday to approve H.R. 3094, the Workforce Democracy and Fairness Act. The legislation would block an NLRB proposal to institute "ambush" union organizing elections held as little as 10 days after a union files a petition, instead requiring at least a 35-day waiting period. It would also counter a ruling in favor of micro-bargaining units - where a union could cherry pick certain departments or employees within a company - by limiting the board's authority to determine the size of a bargaining unit. It would also block a proposal to require companies to give workers' home addresses and e-mail addresses to union organizers.
Obama Rule Restricts Business Activities
On September 13th, the Obama administration proposed a rule to restrict government employees from accepting free invitations to trade association programs and events. The White House goal is to extend the lobbyist gift ban for political appointees to all executive branch employees and to explicitly single out trade associations since their "primary concern" is not education or professional development, but lobbying. The Office of Government Ethics confirmed that appointees and other government employees could still attend a trade association program if they are speaking in an official capacity or if they pay the registration fee to attend a conference. Trade unions will not face the same restriction. CropLife America has joined with the American Society of Association Executives in filing comments to the Federal Register opposing this rule.
ATA Reports Driver Turnover Increased Second Quarter
The turnover rate for over-the-road truck drivers rose to 79 percent in the second quarter, according to the latest American Trucking Association (ATA) Trucking Activity Report, marking the third quarter in a row of increased churn in the driver market. The turnover rate for drivers at large truckload fleets rose four basis points from the first quarter's rate of 75 percent, pushing the rate to its highest point since the second quarter of 2008. Turnover at small truckload companies and less-than-truckload (LTL) fleets actually fell in the quarter, dropping to 47 percent from 50 percent for small truckload firms and to 6 percent from 8 percent for LTLs.
Increased Role of Government in Family Finances
In 1983, about 28% of the population received a government check of some kind every month. This includes Social Security, Medicare, Medicaid, food stamps, disability payments and so on. The idea was for the government to help those in need and to ensure that people can live comfortably in their retirement. Today, the percentage of the population getting that check is 48.5% and by the end of the decade, that percentage is estimated to be close to 60%, as more of the Baby Boomers start receiving their retirement money. In the bluntest of terms it is not sustainable for 40% of the population to support the other 60%. According to Armada Business Intelligence, the most awkward discussion that will be taking place in the future will be over what to do with this growing imbalance. The situation that exists today is close to being unsustainable, and by all accounts, the situation will become far worse in the years ahead. It is by far the hardest set of cuts a government can be asked to make. Cuts will likely take place for those who are not as economically fragile. It is very likely that retirement money will be reduced for those who have alternative sources of income. Retirement ages will be extended for those who are in the workforce today. To have an impact on the situation today will mean that people getting social security will be taxed on it and those with the means to handle their own retirement may be deprived of their social security altogether.
Make Sure Your Random Pool is Accurate and Current
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 regarding drug testing. This should help outline the requirements associated with maintaining an accurate random pool list. Our thanks to J.J. Keller for their support over the years and for the use of this article.
The driver roster you compile for your DOT random testing program needs to accurately reflect the number of safety-sensitive positions at your motor carrier. If someone is omitted - or included when he should not be - it may skew the number of tests you complete for the calendar year. It also violates the Federal Motor Carrier Safety Regulations (FMCSRs). Who should you include? To understand who to include in your testing program, you must first look at a few definitions.
In Part 382, a safety-sensitive function surrounds the operation of a commercial motor vehicle (CMV) as defined in 383.5/382.107. The definition reads:
Commercial motor vehicle (CMV) means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:
  1. Has a gross combination weight rating or gross combination weight of 26,001 pounds or more, whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 10,000 pounds, whichever is greater; or
  2. Has a gross vehicle weight rating or gross vehicle weight of 26,001 pounds or more, whichever is greater; or
  3. Is designed to transport 16 or more passengers, including the driver; or
  4. Is of any size and is used in the transportation of hazardous materials as defined in this section.
This CMV definition is also used when determining if a commercial driver's license (CDL) is required.
A driver (i.e., employee) for the purpose of Part 382 is defined as anyone who operates, is in readiness to operate, or occasionally operates this CMV. It is important to note that applicability is based on the operation of this vehicle, not CDL licensing, although a CDL would be required to perform a safety-sensitive function. If someone holds a CDL, but does not utilize it at the motor carrier, he or she cannot be placed in the random pool.
Often overlooked drivers
Some carriers mistakenly believe that a driver does not have to be included in their DOT testing program if he or she is not a permanent, full-time company driver. Anyone operating a CDL type of commercial motor vehicle under your USDOT number needs to be included in your random pool. Consider the following categories of drivers often omitted from the driver roster:
  • Leased owner-operators
  • Drivers from a staffing service
  • Seasonal drivers
  • Part-time drivers
  • Occasional drivers with other job titles (mechanics, dispatchers, managers and other motor carrier personnel who fill-in or move CMVs around)
If a driver has more than one "employing" motor carrier that is subject to part 382, the driver must be in as many random selections as he or she is employed. "Employed" can be taken to mean operating a CMV on a motor carrier's behalf under its authority. It does not necessarily mean "employed" for Internal Revenue Service (IRS) or Department of Labor (DOL) purposes.
Crossing names off the list
When is it safe to remove a name from the driver list? A driver must remain in the random selection during a leave of absence, long vacation, or layoff - providing you are sure he or she will return. A temporary, occasional or intermittent driver must remain in your testing pool for so long as you expect that he or she might be utilized again. If you are sure that he or she will not return, you may remove the driver from your testing program.
Most Quotable:
The wonderful thing about a capitalist system is that it allows individuals the freedom to seek their own happiness, to do what they love, and to follow their own dreams. That's what Steve Jobs, President and CEO of Apple Computer did. He loved his work and he told us: "Your time is limited, so don't waste it living someone else's life. Don't be trapped by dogma-which is living with the results of other people's thinking. Don't let the noise of others' opinions drown out your own inner voice. And most important, have the courage to follow your heart and intuition." Well said, from a man who saw life as a celebration and whose life we should celebrate!
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.