Spring 2020 Kansas Agribusiness Retailers Association 816 SW Tyler Topeka, KS 66612 (785) 234-0463 ksagretailers.org ASSOCIATION STAFF Ron Seeber President & CEO Randy Stookey Senior Vice President General Counsel Staci Storey Senior Vice President Chief Financial Officer Shari Bennett Vice President Event Planning Samantha Tenpenny Director of Member Services Lisa Anschutz Senior Director of Internal Operations Trae Green Associate Vice President Sidney Storey Administrative Assistant BOARD OF DIRECTORS Lance Nelson Chairman Dustin Kuntz Vice Chairman Kevin Dieckmann 2nd Vice Chairman Clark Pearson Immediate Past Chairman Gary Beachner Bryan Bucl Troy Coon Yance Farney Justin Foss Bill Garner Tim Giesick Jim Grilliot Jeff Holling
Rachel Hurley Brian Laverentz Jami Loecker Kevin Mears Scott Morris O.J. Pearl Dave Spears Mark Wegner
Editors: KARA staff Photos: Cover (iStock.com/ tomofbluesprings)
Kansas Agribusiness Retailers Association (KARA) has been working around the clock as events unfold during this unprecedented time in our world. We are doing our best to keep you informed on how COVID-19 decisions are affecting agribusiness. We are holding weekly phone meetings with Kansas Secretary of Agriculture Mike Beam and his staff at Kansas Department of Agriculture where we are relaying the message that even a temporary shut down of any aspect of production agriculture would be ill advised and would have permanent detrimental repercussions to Kansas and the country.
TABLE OF
CONTENTS 03 PRESIDENT’S LETTER We’ve been ahead of the curve in COVID-19 response
14 KARA SCHOLARSHIP WINNERS KARA awards nearly $10,000 in scholarships for 2020-21
04 KANSAS COVID NEWS News on COVID-19 affecting our state
15 KARB PROGRAM UPDATE The latest on the Kansas Agricultural Chemical Remediation program
07 INDUSTRY NEWS Updates on state, federal and industry news affecting your business
08 KANSAS CAPITOL REVIEW This was anything but a regular session given the current circumstances we’re facing in our country
22 FMCSA QUESTION & ANSWER The Federal Motor Carrier Safety Administration (FMCSA) has compiled this list of responses to frequently asked questions
The Kansas Agribusiness Update is published quarterly for the members, friends and affiliates of the Kansas Agribusiness Retailers Association. Email contributions to: Trae Green, trae@kansasag.org. Annual subscriptions for members can be purchased for $25.00. © 2020 KARA. Read this newsletter online at www.ksagretailers.org/printnewsletters. Advertising does not influence editorial decisions or content. KARA reserves the right to refuse, reject, or cancel any ad for any reason at any time without liability.
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Agribusiness Update
SAFE AND ABUNDANT FOOD THROUGH SOUND SCIENCE
PRESIDENT’SMESSAGE RONALD SEEBER
President and CEO
Ronald Seeber became the second president and CEO in the nearly 40-year history of Kansas Agribusiness Retailers Association in 2017. Seeber has more than 30 years of association management and government affairs experience working in Washington, D.C., and his home state of Kansas. PHONE 785.234.0461 785.224.1848
ADDRESS 816 SW Tyler Street Topeka, KS 66612
EMAIL ron@kansasag.org
DEAR KARA
MEMBERS If there has been one bright light in this whole COVID-19 odyssey, the average American now understands food doesn’t magically appear on a shelf in the grocery store aisle. That being said, it took a bit of reminding from your association to convince many on the city, county, state and federal government levels that the members of the Kansas Agribusiness Retailers Association (KARA) are indeed critical components of our nation’s food supply infrastructure. We needed to convince many of these leaders that without the tools to do our job, those grocery store shelves would remain wanting of food. We are fortunate KARA is part of a tight-knit network of similar agribusiness trade associations in nearly every state of the union. Because of this relationship, we were the first to learn of the challenges our colleagues on the west coast were facing with stay at home orders and the needed definition of essential employees. Before the first Kansas COVID-19 case on March 7, KARA staff already had draft letters in hand deeming our members’ employees as critical infrastructure and were ready to deploy them when the time was right. Before the first county order was implemented, KARA had already taken the initiative and organized other Kansas ag-related associations and commissions by sending a letter to Governor Laura Kelly requesting that our industry and all of production agriculture be deemed essential infrastructure as defined by the Department of Homeland Security should a quarantine be implemented. We stressed
that our nation’s critical infrastructure for food not only includes supermarkets and distribution centers, but also heavily relies on those taking care of grain handling, livestock, poultry and equine in addition to those producing and processing feed for livestock, poultry, equine, meat, eggs and dairy processing plants. We also requested agricultural supply infrastructure (including seed, crop protectants, fertilizer, etc.), planting and harvesting of crops, fruits and vegetables; as well as transport between all these critical supply points be recognized. We are pleased to say that the day after our letter was received, the Governor issued a statewide order stating almost verbatim what we asked – Kansas agribusiness be deemed essential. We then issued our own letter to KARA members to distribute to their employees verifying their exempt status. When Johnson County was the first county in Kansas to issue a poorly worded and vague stay at home order, KARA immediately contacted a Johnson County Commissioner and had our industry exempted. Johnson County’s hastily-written and implemented health order started a chain reaction of other counties doing the same. It was similar to that old arcade game “whack-a-mole,” once we fixed one county, another would pop up. We did this for 15 additional counties until the Governor issued a statewide stay at home order and specifically exempted production agriculture from that order. In addition to keeping your employees at the job in a safe capacity, your association was also key in requesting and receiving
weekly Zoom meetings with the Secretary of Agriculture, Mike Beam, to discuss industry concerns. We requested and received an executive order temporarily increasing truck weights for the transportation of our products during the pandemic and received verification from the Kansas Highway Patrol that this was the case. We also requested and received CDL waivers and the availability of CDL exams by appointment from the state of Kansas. The COVID-19 pandemic has been a challenge for everyone, but at least for the Kansas Agribusiness Retailers Association members, we had a plan from the beginning. We learned quickly from the mistakes being made in other states and proactively fixed those that arose in Kansas. We also used this opportunity to toot our horn and to let people know, that without you, their bread, meat and dairy aisles might look just like the toilet paper aisle. Sincerely,
Ronald C. Seeber President and CEO Kansas Agribusiness Retailers Association
Spring 2020
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KANSAS AGRIBUSINESS RETAILERS ASSOCIATION
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Governor Issues Statewide “Stay At Home” Order … Kansas Agribusiness Exempt On April 16, Governor Laura Kelly issued Executive Order #20-24 extending the statewide “stay home” order set to expire April 19, to midnight May 3. The Governor’s Order directs all individuals within the state of Kansas to stay in their residences unless performing an essential activity including but not limited to: Performing, or going to or from work at a business or organization to perform, an essential function as identified in the Kansas Essential Function Framework (KEFF). The KEFF includes businesses that maintain supply chains for essential functions and critical infrastructure as defined by a March 19, 2020 US Dept. of Homeland Security (DHS) memorandum. The memorandum defines “agricultural storage facilities,” “agricultural inputs,” and biofuel facilities as critical infrastructure.In addition, the order lists the following provisions: A. No individual leaving their home in order to perform an activity or function allowed under this order shall be required to carry or present any letter, identification card, or other paper proving that they are allowed to leave their home. B. No prior approval is required for individuals or entities to perform essential functions listed in the KEFF. Individuals or entities who are uncertain whether they perform functions exempted from the prohibitions of this order may email KEFF@ks.gov to determine whether their functions are deemed essential. C. All individuals performing essential functions authorized by this order must – to the extent possible without significant disruption 4
Kansas Agribusiness Update
to essential functions – use telework capabilities to avoid meeting in person; and any essential functions being performed on-site or in-person must – to the extent possible without significant disruption to essential functions – follow appropriate safety protocols, including maintaining a six-foot distance between individuals and following other directives regarding social distancing, hygiene and other efforts to slow the spread of COVID-19. While this order is in effect, it supersedes all local “stay home” or similar orders. It remains in effect until May 03, 2020. Although provision A in the Governor’s Order above states, “no individual leaving their home in order to perform an activity or function allowed under this order shall be required to carry or present any letter, identification card, or other paper proving that they are allowed to leave their home,” we have drafted a template letter for you to download and modify in the event a situation arises you need verification. Prior to the Governor’s Executive Order, stay at home orders were issued by individual counties including: Atchison; Crawford; Doniphan; Douglas; Franklin; Jefferson; Johnson; Leavenworth; Lyon; Miami; Morris; Osage; Sedgwick; Shawnee and Wyandotte. If you have any questions or concerns regarding this order, please do not hesitate to contact the association office by emailing Ron Seeber and/or Randy Stookey or calling 785-234-0461.
SAFE AND ABUNDANT FOOD THROUGH SOUND SCIENCE
KANSAS
COVID-19 NEWS Kansas Executive Order 20-22, Motor Carrier Extension KARA During the Pandemic
Kansas Agribusiness Retailers Association (KARA) has been working around the clock as events unfold during this unprecedented time in our world, we are doing our best to keep you informed on how COVID-19 decisions are affecting agribusiness. We are holding weekly phone meetings with Kansas Secretary of Agriculture Mike Beam and his staff at Kansas Department of Agriculture where we are relaying the message that even a temporary shut down of any aspect of production agriculture would be ill advised and would have permanent detrimental consequences to Kansas and the country. A quick rundown of the services we’ve provided since the pandemic began affecting Kansas is below: TUESDAY, 3-17-20 KARA staff began conversations with various state agribusiness associations about industry needs and concerns regarding the COVID-19 crisis.
Governor Laura Kelly has issued Executive Order 20-22 which extends the previous Executive Order 20-09, which expired on April 12, 2020. The Order maintains the 10% weight wavier up to 90,000 lbs for trucks hauling essential goods and supplies. The new Order expires on May 15, 2020, or until the statewide state of disaster emergency on COVID-19 expires. Governor Laura Kelly’s Executive Order 20-22 (view by clicking the button below or HERE) allows a 10% weight waiver for motor carriers of essential services and food supplies. For our members’ clarification of the Executive Order, we requested clarification from the Kansas Highway Patrol if the waiver applies to the following: • transport of agricultural crop inputs (seed/pesticide/fertilizer/diesel) from import/manufacturer to the end user/farmer • transport of grain from farm to elevator • transport of grain from commercial elevator to end user (i.e., feed yards, feed mills, biofuel plants, export market, etc.) • transport of ethanol and biodiesel from processing plant to market Your association stated to the Kansas Highway Patrol that our industry will continue to work through the pandemic to ensure that our citizens have access to essential food supplies and fuel. Allowing this 10% weight waiver will become critically important as our industry – already short on commercial
drivers – loses additional drivers during the pandemic. The Kansas Highway Patrol stated that the waiver does apply to our industry, our members should be able to answer the following questions: 1. Does this particular trip contribute to the immediate restoration of essential services or supplies related to issues caused by the COVID 19 pandemic as required by the declaration, or is it business as usual for your company? 2. If I am stopped for inspection, or if my company is subject to a later compliance investigation, will I be able to support my decision to utilize the declaration to the inspector, trooper or safety investigator? While not required by the terms of the declaration any documentation, it would benefit you to have some form of documentation supporting your use of the weight waiver. 3. Am I making an honest assessment of the situation as to the benefits and risks for my fellow citizens on my use of the declaration?
WEDNESDAY, 3-18-20 KARA published first COVID-19 statement announcing that KDA’s priority was for continuity in the Ag industry. KARA requested that the Administration allow for truck weight waivers during the pandemic. THURSDAY, 3-19-20 & FRIDAY 3-20-20 Requested and was granted weekly meeting with KDA Secretary Mike Beam to discuss COVID-19 concerns. Staff then reached out to members and requested items to discuss with Secretary Beam. Top priority was to secure an agribusiness critical infrastructure exemption in any quarantine action taken by the Governor. Staff initiated a letter to Governor asking Agribusiness be considered DHS defined critical infrastructure and be exempt for state quarantine orders. Staff then circulated letter to other Kansas Ag groups for input and signatures. SATURDAY 3-21-20 THROUGH MONDAY 3-23-20 Started contacting counties that had issued stay at home orders to ensure that all agribusiness and biofuel employees are to be exempt based on DHS guidelines. We contacted and received confirmation from over 15 counties. SUNDAY, 3-22-20 Governor signed Exec. Order 20-09 allowing for a temporary 10% truck weight waiver (90k lb max) for the transport of goods incident to the immediate restoration of essential services. KARA requested KS Highway Patrol’s opinion on what industries and products would qualify under the Order, and then provided that information to members on Tuesday, 3/24/20.
Spring 2020
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KANSAS
COVID-19 NEWS TSA Exemption for Hazardous Material Endorsement Courtesy: Ag Retailers Association
The Transportation Security Administration (TSA) is granting a temporary exemption from requirements regarding expiration of TSA security threat assessments (STAs) for Hazardous Material Endorsement (HME). For the duration of this exemption, a state may grant an extension of up to 180 days for an HME that expired or would otherwise expire between March 1, 2020, and the end date of this exemption, even if the individual was unable to initiate or complete the required STA before the expiration date.
If the state grants an extension, the individual with an expired HME must initiate the process of renewing his or her STA for an HME no later than 60 days before the end of the State-granted extension. TSA may extend this exemption at a future date depending on the status of the COVID-19 crisis. ARA continues to work with FMCSA and state agencies to issue guidance for new drivers, seasonal drivers and new CDL endorsements.
USCIS Temporarily Amends Certain H-2A Requirements On April 20, 2020, the Department of Homeland Security and USCIS will publish a temporary final rule to amend certain H-2A requirements to help U.S. agricultural employers avoid disruptions in lawful agricultural-related employment, protect the nation’s food supply chain, and lessen impacts from the coronavirus (COVID-19) public health emergency. Due to travel restrictions and visa processing limitations as a result of actions taken to mitigate the spread of COVID-19, as well as the possibility that some H-2A workers may become unavailable due to COVID-19 related illness, U.S. employers who have approved H-2A petitions or who will be filing H-2A petitions might not receive all of the workers requested to fill the temporary positions, and similarly, employers that currently employ H-2A workers may lose the services of workers due to COVID-19 related illness. Under this temporary final rule, all H-2A petitioners with a valid temporary labor certification (TLC) can now start employing certain foreign workers who are currently in the United States and in valid H-2A status immediately after USCIS receives the H-2A petition, but no earlier than the start date of employment listed on the petition. Additionally, USCIS is temporarily amending its regulations to allow H-2A workers to stay beyond the three-year maximum allowable period of stay in the United States. These temporary changes will encourage and facilitate the lawful
employment of foreign temporary and seasonal agriculture workers during the COVID-19 national emergency. The temporary final rule is effective immediately upon publication in the Federal Register. If the new petition is approved, the H-2A worker will be able to stay in the United States for a period of time not to exceed the validity period of the Temporary Labor Certification. DHS will issue a new temporary final rule in the Federal Register to amend the termination date in the event DHS determines that circumstances demonstrate a continued need for the temporary changes to the H-2A regulations. It is important to note to the public that this temporary final rule does not amend the Department of Labor’s (DOL’s) regulations covering the labor market test and recruitment of U.S. workers for the H-2A process. Before filing an H-2A petition with DHS, the H-2A petitioner must have obtained a valid TLC from DOL for the job opportunity the employer seeks to fill with an H-2A worker(s). This final rule is not a joint rule with DOL, and USCIS is not proposing changes to DOL’s H-2A TLC process or its regulations.
KARA During the Pandemic MONDAY, 3-23-20 Sent letter to Governor on behalf of KARA and all of agriculture asking that we be considered critical infrastructure under DHS guidelines should “stay at home” or “quarantine orders” be implemented. TUESDAY, 3-24-20 Governor issued executive order 20-15 overriding counties’ individual orders. As requested, DHS’s critical infrastructure definition was adopted. However, the order did leave in question on who actually had the ultimate authority – state or county. THURSDAY, 3-26-20 KARA reported FMCSA granted waivers for CDL (medical certificates and expired licenses). FRIDAY, 3-27-20 KARA provided employee documentation letter stating that the company is an essential business, and that the employee performs essential activities for the company. FRIDAY, 3-27-20 KARA met with Secretary Beam and discussed, among other topics, PPE, interstate truck weights, CDL concerns, and air permit issues. SATURDAY, 3-28-20 KARA announced Laura Kelly’s statewide order 2016, ensured that our members were held harmless, and provided updated employee letter. MONDAY, 3-30-20 KARA shared DMV CDL appointment only locations. FRIDAY, 4-3-20 KARA again met with KDA Secretary Beam to discuss ongoing COVID-19 efforts. FRIDAY, 4-10-20 KARA again met with KDA Secretary Beam to discuss ongoing COVID-19 efforts.
Spring 2020
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KANSAS AGRIBUSINESS RETAILERS ASSOCIATION
Capitol
REVIEW
By: Randy Stookey
The Legislature wrapped up regular session business, adjourning nearly a full week before its regularly scheduled adjournment date as concerns of COVID-19 exposure continue to grow. This shortened session prevented final legislative action on many bills. However, the adjournment resolution is scheduled to bring the legislature back on Monday, April 27, and allow one final week of possible action on bills — all of which is dependent on the broader COVID-19 pandemic. 8
Kansas Agribusiness Update
SAFE AND ABUNDANT FOOD THROUGH SOUND SCIENCE
LEGISLATURE PASSES BUDGET FOR FISCAL YEARS ’20 AND ’21 On Thursday, March 19, following multiple rounds of conference committee meetings between the House and Senate, the legislature passed, and sent to the Governor for consideration, Conference Committee Report (CCR) on Senate Bill 66, which contains the approved state budget for fiscal years 2020 (remaining), and 2021. The budget contains appropriations for $6.4 million in funding for the State Water Plan Fund, and also contains a proviso limiting the regulatory authority of the Kansas Dept. of Health and Environment from increasing fees on industries to fund its Bureau of Air Quality. The agency had previously stated its intention to increase fees on Class I and Class 2 air emitters up to an additional $1.7 million in 2020. Additional proviso language extends the sunset on the underground petroleum storage tank fund; and, maintains $650,000 in the Ag Marketing Division of the Kansas Department of Agriculture that had been slated for transfer to another state agency.
SOME OF THE HIGHLIGHTS OF THE FISCAL YEAR 2021 BUDGET INCLUDE: -- Medicaid Expansion Proviso – language was added to prohibit the expansion of the Kansas Medicaid program without express consent of the Legislature. -- $17.5 million to the Coronavirus SOME OF THE HIGHLIGHTS IN THE Prevention Fund of the State Finance Council FISCAL YEAR 2020 BUDGET INCLUDE: if Medicaid expansion is not passed into law. -- $50.0 million for the coronavirus response -- $5 million for the Cancer Center Research in FY 2020. Fund at the University of Kansas Medical -- $15.0 million to the Kansas Division of Center, bringing the total amount in the fund Emergency Management for coronavirus to $10.0 million for FY 2021. response in FY 2020. -- $2 million from the State General Fund to -- Does not include the Governor’s proposed the State Water Plan Fund, bringing the total transfer of $54.0 million for the Local Ad transfer to $6 million for FY 2021, and $413k Valorem Tax Reduction Fund. from the Economic Development Initiatives -- Fiscal year 2021 budget includes total Fund. expenditures of $19.9 billion, including -- $2.4 million to the Kansas Dept. of $8.0 billion from the State General Fund. Agriculture, mostly from the State Water The recommendation is an all funds increase Plan Fund, for a variety of cost share water of $127.7 million. The FY 2021 projected projects including: conservation ($250,000), ending balance is $627.8 million, or 8.0 Watershed conservation ($300,000), percent of expenditures. streambank stabilization ($250,000), watershed dams ($200,000), conservation reserve enhancement program ($297,699), Fiscal year 2020 budget includes total expenditures of $18.7 billion, including $7.8 billion from the State General Fund. This is an all funds increase of $7.1 million, or less than 0.1 percent, and a State General Fund increase of $6.9 million, or 0.1 percent.
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INDUSTRYnews
Courtesy: commons.wikimedia.org/MichaelKranewitter
USDA Announces Coronavirus Food Assistance Program
SONNY PERDUE USDA Secretary
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The American food supply chain had to adapt, and it remains safe, secure, and strong, and we all know that starts with America’s farmers and ranchers. This program will not only provide immediate relief for our farmers and ranchers, but it will also allow for the purchase and distribution of our agricultural abundance to help our fellow Americans in need.
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Kansas Agribusiness Update
U.S. Secretary of Agriculture Sonny Perdue today announced the Coronavirus Food Assistance Program (CFAP). This new U.S. Department of Agriculture (USDA) program will take several actions to assist farmers, ranchers, and consumers in response to the COVID-19 national emergency. President Trump directed USDA to craft this $19 billion immediate relief program to provide critical support to our farmers and ranchers, maintain the integrity of our food supply chain, and ensure every American continues to receive and have access to the food they need. CFAP will use the funding and authorities provided in the Coronavirus Aid, Relief, and Economic Security Act (CARES), the Families First Coronavirus Response Act (FFCRA), and other USDA existing authorities. The program includes two major elements to achieve these goals. Direct Support to Farmers and Ranchers: The program will provide $16 billion in direct support based on actual losses for agricultural producers where prices and market supply chains have been impacted and will assist producers with additional adjustment and marketing costs resulting from lost demand and short-term oversupply for the 2020 marketing year caused by COVID-19. USDA Purchase and Distribution: USDA will partner with regional and local
distributors, whose workforce has been significantly impacted by the closure of many restaurants, hotels, and other food service entities, to purchase $3 billion in fresh produce, dairy, and meat. We will begin with the procurement of an estimated $100 million per month in fresh fruits and vegetables, $100 million per month in a variety of dairy products, and $100 million per month in meat products. The distributors and wholesalers will then provide a preapproved box of fresh produce, dairy, and meat products to food banks, community and faith based organizations, and other nonprofits serving Americans in need. USDA has up to an additional $873.3 million available in Section 32 funding to purchase a variety of agricultural products for distribution to food banks. The use of these funds will be determined by industry requests, USDA agricultural market analysis, and food bank needs. The FFCRA and CARES Act provided an at least $850 million for food bank administrative costs and USDA food purchases, of which a minimum of $600 million will be designated for food purchases. The use of these funds will be determined by food bank need and product availability.
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KANSAS AGRIBUSINESS RETAILERS ASSOCIATION
Capitol
REVIEW
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Water Injection Dredging ($660,000), Dewatering in Hayesville ($200,000). -- Reduces Governor’s proposed transfer from the State Highway Fund to the State General Fund by $25 million – leaving a transfer to SGF of $133 million for FY 2021. -- Does not include the Governor’s proposed transfer of $54.0 million for the Local Ad Valorem Tax Reduction Fund.
average unemployment rate. Kansas’ unemployment insurance system currently allows for 16 weeks of benefits at our current unemployment rate. The bill would increase the maximum benefit to 26 weeks. The bill would sunset on April 1, 2021. Kansas went through $800 million in six months during the 2008 recession. There is currently $1 billion in Kansas’ unemployment insurance fund.
LEGISLATURE PASSES STATE TRANSPORTATION PLAN – RENAMED “EISENHOWER LEGACY” PLAN Following much debate in conference committees, on Thursday, March 19, the legislature passed, and sent to the Governor, House Sub for Senate Bill 173. Now known as the Eisenhower Legacy Transportation Program, this bill sets forth the state’s next 10-year transportation plan. The final plan will: specify the types of projects authorized, address local funding and new and continuing grant programs, authorize alternative procurement methods under certain circumstances, increase city connecting links payments, add reporting requirements, require at least $8 million to be spent in each county through FY 2030, state 16.154 percent of sales tax shall be levied for the State Highway Fund (SHF), and make additional changes to law. In addition, the plan includes a new $15 million, 3-year, 70/30 cost-share grant program for improvements to short line rail and rail siding owned or leased industry. Kansas Grain and Feed Association, Kansas Agribusiness Retailers Association, and Renew Kansas Biofuels Association requested inclusion of this language for its member companies.
HIGH PERFORMANCE INCENTIVE PROGRAM AMENDMENTS On Tuesday, March 17, the Senate passed HB 2702 favorably on a vote of 39-0. The bill decouples the High Performance Incentive Program tax credit from the requirement to participate in either the Kansas Industrial Training (KIT) or Kansas Industrial Retraining (KIR) workforce training programs. The Division of the Budget states the bill would give the Department flexibility in using dollars from both the KIT and KIR programs. It is assumed that there would be an increase in those who qualify for the HPIP investment tax credit since there is no longer a training requirement and only the wage standard requirement. The Department of Commerce determines who
BILLS PASSED, ADVANCED TO THE GOVERNOR: UNEMPLOYMENT INSURANCE BENEFITS EXTENDED HOUSE SUB FOR SENATE BILL 27. This bill was passed by both chambers, and then signed into law by Governor Kelly on Thursday, March 19. The bill extends the total number of benefit weeks for unemployment insurance for Kansas workers, which is currently adjusted for the seasonal 12
Kansas Agribusiness Update
would be qualified for the High Performance Incentive Program. The bill is advanced to the Governor for consideration. The bill was amended by the Senate Commerce Committee, and will head to conference committee. LOCAL GOVERNMENT CONSOLIDATION BILL On Tuesday, March 17, the Senate passed HOUSE BILL 2510 favorably on a vote of 39-0. This bill would establish a procedure for a city or county to assume the powers, responsibilities, and duties of any special district located within the city’s corporate limits or county’s boundaries and dissolve such a special district if approved by a joint resolution adopted by the city or county and the special district. The bill was supported by the Kansas Grain and Feed Association, Kansas Agribusiness Retailers Association, and Renew Kansas Biofuels Association. BILLS AWAITING FINAL PASSAGE WHEN THE LEGISLATURE RECONVENES APRIL 27
SAFE AND ABUNDANT FOOD THROUGH SOUND SCIENCE
PUBLIC UTILITIES INCOME TAX EXEMPTION FOR RATE RELIEF SENATE BILL 126. This bill would permanently exempt certain public utilities from paying an income tax and also exclude the utility from factoring the cost of this income tax in setting their utility rates. The purpose of the bill is to lower utility rates and make Kansas more competitive. The measure could save over 2 million Kansas residential and industrial rate payers over $40 annually in lower energy rates. The bill, which passed the Senate 40-0, awaits final action in the House Committee on Utilities. In addition, on a procedural motion, the Senate Committee on Utilities placed the contents of SB 126 into Senate Substitute for House Bill 2585, along with the contents of Senate Bill 339 concerning special contract rates for electricity. UTILITY SECURITIZATION BILL RECEIVES HEARING SENATE BILL 437. The bill would give the Kansas Corporation Commission the authority to authorize the issuance of ratepayer-backed securitized bonds in order to finance the retirement of existing generating assets in the state, as well as any replacement generation facilities necessary to replace the lost capacity and energy from the retired generation facility. The goal of the bill is lower utility rates by Kansas rate payers. A hearing on the bill was held in the Senate Utilities Committee. PROPERTY TAX BILLS SB 262. This bill would change the time in which aggrieved parties may request a full and complete opinion from the State Board of Tax Appeals (BOTA) from 14 days
following the receipt of a summary decision from BOTA to 21 days following service of a summary decision from BOTA. This bill passed the Senate favorably and received a hearing in the House Tax Committee. SB 263. This bill would require notice of the estimated property tax dollar amount to be stated on the property tax notice. The purpose is to increase transparency in property taxes. SB 264. This bill would allow PVD to remove persons from a list of eligible county appraisers due to termination in one or more counties and notification when person no longer holds officer of county appraiser. This bill would give PVD more authority to remove appraisers from PVD’s approved list. SB 265. This bill would require the State Board of Tax Appeals (SBOTA) to serve orders and notices via electronic means to parties and their attorneys who have requested and consented to such electronic service. This bill passed the Senate favorably and received a hearing in the House Tax Committee. SB 266. The bill would require appraisal courses for county appraisers and BOTA members to be approved by the Kansas real estate appraisal board. SB 272 would prohibit the Board of Tax Appeals (BOTA) from increasing the appraised valuation of a property to an amount greater than the final determination of the appraised value by the county appraiser. The bill would also prohibit a county appraiser from increasing the appraised value of property as the result of an informal meeting between the aggrieved taxpayer and the county appraiser. SB 273. This bill would allow taxpayer or their representative to attend any Board of
Tax Appeals proceeding by audio or video electronic communication. SB 294. This bill would establish notice and public hearing requirements prior to approval by a governing body to exceed its certified tax rate for property tax purposes. This bill, patterned after Utah property tax law, would require local taxing jurisdictions to lower the mill levy in order to keep the budget flat if property valuations in the jurisdiction increased. The stated goals of the Utah property tax model are taxpayer protection, increased accountability to tax payers, and increased transparency in the process. The model would prohibit automatic property tax increases from increases in property valuations, as usually happens when valuations rise. The model is intended to offer a balanced approach by allowing greater transparency and more local control by allowing local governments the flexibility to pay for the services their constituents say they want. If local government requests an increased budget, they must first notify all property owners in their jurisdiction of their intent to increase the budget. Then then must hold a public meeting on the proposal, and take a public vote in order to raise the budget. SB 295. This bill would prohibit property tax valuation increases solely as the result of normal repair, replacement or maintenance of existing structure. SB 297. This bill would remove language requiring appraisals to be performed in accordance with generally accepted appraisal standards promulgated by the Appraisal Standards Board of the Appraisal Foundation, and would replace it with a requirement to comply with the Uniform Standards of Professional Appraisal Practice (USPAP). Additionally, the bill would remove a county appraiser’s authority to require compliance with additional standards and would require that if the Director requires compliance with additional standards that those additional standards do not conflict with USPAP. SB 309. Under current law, a taxpayer has the option to appeal any summary decision or full and complete opinion of the Board of Tax Appeals (BOTA) that would allow for a new trial with the district court. SB 309 would place the burden of proof on the county appraiser to initiate the production of evidence to demonstrate the validity and correctness of the property valuation or classification of residential or commercial Continued on Page 18 Spring 2020
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$1,500 WINNERS Zachary Eck, Ellis Caleb Stout, Cottonwood Falls Abby Vetter, Randall Cooper Zenger, Mullinville Dr. David Whitney Agronomy Scholarship Courtney Sherbert, Morganville Jim Lee Memorial Scholarship Toby McClure, Hugoton
KARA Announces Scholarship Winners Kansas Agribusiness Retailers Association’s (KARA) scholarship committee met over conference call in late April and awarded nearly $10,000 in scholarships to Kansas high school graduating seniors and college students for the 2020-21 academic year. Kansas Agribusiness Retailers Association’s (KARA) scholarship committee met in mid-April and awarded nearly $10,000 in scholarships to Kansas high school graduating seniors and current college students for the 2020-21 academic year. The scholarship committee, comprised of KARA’s membership, received more than 100 applications and awarded six students scholarships to assist in advancing their academic endeavors. “KARA has a long and proud history of providing scholarships to worthy students,” KARA’s president and CEO Ron Seeber said. “We congratulate this year’s recipients and wish them the best with their studies and their future contributions to the industry.” Each year, KARA awards one $500 Jim Lee Memorial scholarship, four $1,500 KARA general scholarships and one $1,500 Dr. David Whitney Agronomy scholarship.
RON SEEBER KARA President & CEO
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KARA has a long and proud history of providing scholarships to worthy students. We congratulate this year’s recipients and wish them the best with their studies and their future contributions to the industry.
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2020-21 WINNERS
SAFE AND ABUNDANT FOOD THROUGH SOUND SCIENCE
Ag Chemical Remediation Reimbursement Program The Agricultural Chemical Remediation Reimbursement Program (Program) provides financial reimbursement of expenses incurred while conducting remediation (cleanup) activities for agricultural chemical and fertilizer contamination. The Kansas Agricultural Chemical Remediation Reimbursement Fund and program are financed by fees on the commercial grain storage, ag-chemical, and fertilizer industries. The reimbursement program is administered by the Kansas Agricultural Remediation Board (KARB). In March of this year, after 19 years of service on the KARB, Board Chairman Larry Shivers stepped off of the board. Our industry is extremely appreciative of all of Larry’s leadership, hard work, and dedication in both developing this program and ensuring its success for so many years. Governor Laura Kelly appointed Kevin Dieckmann, Olathe, to fill the specialty chemical distributor seat on the Board, replacing Larry Shivers. Gov. Kelly also appointed Jodi Guetterman, Bucyrus, to fill the agricultural-producer seat on the Board. In addition, Kelly reappointed Kamyar Nikoomanesh, Lenexa, as the agricultural processor representative to the board, and also appointed him as the new Board Chairman. During the March 13, 2020 KARB board meeting, KARB reimbursed nine (9) applicants a total of $79,876. The next KARB meeting will be held on Friday, June 19, 2020. The deadline to submit applications
prior to that meeting is May 22, 2020. There is currently no back-log of applications to the fund, and applications are generally able to be reviewed for reimbursement in the quarter that they are submitted. If your facility is conducting agricultural chemical remediation activities either
ordered by the Kansas Department of Health and Environment, or agreed to under the state Voluntary Cleanup Program, please submit an application for reimbursement to the Board. The application form and information about the program are available at www.karb.org.
Providing Kansas Agribusiness Professional Environmental Engineering Services since 1989
We provide:
Environmental Site Assessments (Phase I & II) ● Spill Prevention Control & Countermeasure (SPCC) Plans ● Stormwater Management ● Containment Engineering ● Groundwater Investigations ● Regulatory Audits, Compliance & Permitting 214 N Saint Francis ● Wichita, KS 67202-2610 ● 316.262.5698 aec@alliedaec.com ● www.alliedenvironmental.com
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KANSAS AGRIBUSINESS RETAILERS ASSOCIATION
UNDERWRITER SPONSOR $20,000+ ProValue Insurance is an independent agency providing comprehensive insurance products and business services to organizations in need of risk protection. Delivering unparalleled knowledge and experience, ProValue helps protect against more than organizational risk, offering coverages for personal assets to individuals throughout Mid-America.
FOUNDER SPONSORS $7,500
BENEFACTOR SPONSORS $5,000
PATRON SPONSORS $3,500
BUILDER SPONSORS $2,000
ADM Fertilizer Beachner Grain Inc. CHS Inc. EGE Products Gavilon Fertilizer, LLC Interchem J.B. Pearl Sales and Services J.R. Simplot Co. Morrill Elevator, Inc. Offerle Coop Grain & Supply Co.
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Kansas Agribusiness Update
DONOR SPONSORS $1,250
Allied Environmental Consultants, Inc. Farmers Cooperative Equity Co. Frontier Ag Inc. MFA/AGChoice Nutrien
GIVER SPONSORS $750
Agrilead Inc. Alliance Ag & Grain LLC American Implement, Inc. Central Valley Ag Cooperative Fairbank Equipment, Inc. Helm Fertilizer Corp.
Kansas Coop Council Midwest Laboratories Inc. Miller Elevator Inc. Pride Ag Resources Ward Laboratories Inc.
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INDUSTRYnews Agriculture Deemed Essential Critical Infrastructure by DHS
Courtesy: US Department of Homeland Security
The Department of Homeland Security (DHS) has designated agriculture essential to continued critical infrastructure viability.
The Department of Homeland Security (DHS) has designated agriculture essential to continued critical infrastructure viability. Guidance on the Essential Critical Infrastructure workforce was issued on March 19th and states “If you work in a critical infrastructure industry, as defined by the Department of Homeland Security, such as healthcare services and pharmaceutical and food supply, you have a special responsibility to maintain your normal work schedule.” Highlights include workers listed in
the sectors of Food and Agriculture, Transportation and Logistics, Critical Manufacturing and Chemical. In the wake of the coronavirus outbreak, this should allow agricultural retailers to continue operating as usual amid current and potential restrictions created to stop the spread of the virus. This designation is extremely timely for the upcoming planting season.
FMCSA Issues Waiver in Response to COVID-19 FMCSA has issued a waiver in response to COVID-19 outbreaks as several states are experiencing employee absences or have closed offices. As a result, many drivers are unable to renew their CDLs or are unable to provide medical certificates. In addition, many medical providers nationwide have canceled appointments to
dedicate resources to the COVID-19 response. As a result, drivers are unable to obtain physicals to comply with the regulations. Among the provisions, this waiver extends the expiration of CDLs due for renewal on or after March 1, 2020 until June 30, 2020. It also waives the requirement that drivers have a medical examination and
certification, provided that they have proof of a valid medical certification that expired on or after March 1, 2020. Drivers claiming relief under this waiver must carry a paper copy of their expired medical certificate.
FMCSA has issued a waiver in response to COVID-19 outbreaks as several states are experiencing employee absences or have closed offices.
Annual Report Deadline Extended
Consistent with Governor Laura Kelly’s Executive Order 20-13, the Office of the Kansas Secretary of State has extended the deadline for businesses to file annual reports for 2019.
Consistent with Governor Laura Kelly’s Executive Order 20-13, the Office of the Kansas Secretary of State has extended the deadline for businesses to file annual reports for 2019. The extended deadline is now July 15, 2020. As a friendly reminder, many business filings can be made online at sos.kansas. gov. In addition to annual reports, online filings include apostille or authentication of
documents, business formation documents for corporations, LLCs and domestic limited partnerships, registered agent or registered office changes, business dissolution or cancellations, and certificate of good standing requests. You can also submit documents through the mail, by fax (785.296.4570) or at a temporary, secure drop box located outside Memorial Hall (120 S.W. 10th, Topeka).
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Continued from Page 13 property before an appeal de novo to the district court. Your association sought introduction of the bill and testified in support of the measure. HOUSE BILL 2517. The bill would allow a property tax abatement following a Governor-declared natural disaster when that natural disaster causes substantial or total loss to the property. Current law provides the tax abatement to residential property owners. Following a request by the Kansas Grain and Feed Association, the bill was amended to extend the tax abatement to owners of commercial property as well. The House Tax Committee passed the bill out of committee favorably. A similar bill (SB 242) passed out of the Senate Tax Committee.
Kansas Agribusiness Retailers Association, and Renew Kansas Biofuels Association – worked with the agency to amend the bill to limit the effect of agriculture chemicals, and limit the total amount of civil penalty authority. The House Agriculture Committee held a hearing on this bill which passed the Senate on a vote of 37-3.
“PUBLIC LITIGATION COORDINATION ACT” HOUSE BILL 2461. This bill – requested by Kansas Attorney General Derek Schmidt – would require local units of government to coordinate with the Attorney General in order to enter into a contract for legal services on a contingency fee basis. The bill is intended to allow for the state to exercise greater control over large suits such where NET OPERATING LOSSES CARRIED the state – or local units of government – FORWARD are the plaintiffs, rather than allowing each HOUSE BILL 2490. This bill would extend subordinate unit of government to enter into the net operating loss carried forward period independent lawsuits. The bill represents to 20 years (currently 10 years) beginning good public policy for both the state and for in tax year 2018. The bill was passed by the industry, but was opposed by the Kansas House on a vote of 118 to 2. Trial Lawyers Association and various cities and counties. Your association joined NEW PESTICIDE WASTE DISPOSAL other agricultural interests in supporting the FUND bill. The bill has received a hearing in the HOUSE BILL 2432. This bill would House Judiciary Committee, and a similar establish the Kansas Pesticide Waste bill was introduced in the Senate Judiciary Disposal Program and Fund within the Committee. Kansas Department of Agriculture. The program would be funded by an annual transfer of no more than $50,000 from the POSTSECONDARY SCHOLARSHIP ACT Kansas Agricultural Remediation Fund. The SENATE SUB HOUSE BILL 2515. This bill passed the House on a vote of 122-0, bill would create the Kansas Reinvest in and was later recommended favorably Postsecondary Education Act (RISE Act), for passage by the Senate Agriculture and amend the Kansas Private and Out-ofCommittee. State Postsecondary Education Institution Act (KPOPEIA). The bill would also establish KDHE CHEMICAL SPILL NOTIFICATION the Kansas RISE Scholarship Program BILL (Program), which would be administered by SENATE BILL 153. The bill would authorize the Kansas Board of Regents (KBOR). The KDHE to establish reportable threshold Program would, subject to appropriations, quantities of chemical spills in rules and provide a scholarship to eligible students regulations. The bill would also allow the for up to two years to attend a public or agency to provide technical guidance private eligible postsecondary educational during a clean-up response, and permit institution in an associate degree program, cost-recovery from the responsible party for career and technical education program, or any state expenses for response to a release. baccalaureate degree completion program. The bill would also provide KDHE the ability The bill, which passed the House on a vote of to levy penalties for illegal dumping, the 116-6, was supported by the Kansas Grain refusal of the responsible party to clean up and Feed Association, Kansas Agribusiness a release, or the lack of timely reporting Retailers Association, and Renew Kansas of a release. Stakeholders – including, Biofuels Association. The Senate Committee Kansas Grain and Feed Association, on Education advanced the bill favorably for 18
Kansas Agribusiness Update
passage. VOCATIONAL TRAINING LIABILITY HOUSE BILL 2507. This bill limits a business’ exposure to liability from injury to a student participant in a school-sponsored vocational programs at the business’ worksite. The intent of the bill is to cover students during these vocational training activities in the same manner as they would be covered during school-sponsored sports activities. The bill was supported by the Kansas Grain and Feed Association, Kansas Agribusiness Retailers Association, and Renew Kansas Biofuels Association. The bill was passed by the House 97-27, and was advanced favorably for passage from the Senate Commerce Committee. BROADBAND DEPLOYMENT GRANT PROGRAM HOUSE BILL 2618. This bill would establish the state broadband deployment grant program in the department of commerce to encourage the deployment of broadband in the state. The bill was introduced following multiple meetings of a legislative broadband task force in 2019. Funding for this costshare grant program is included in the state transportation plan. The bill had passed the House on a vote of 120-5, and was then recommended favorably for passage by the Senate Utilities Committee. AGENCY REGULATIONS HOUSE BILL 2411. This bill would roll back certain changes made by legislation passed in 2018 which amended the Rules and Regulations Filing Act to introduce a heightened scrutiny of fiscal notes on proposed agency regulations. Kansas Grain and Feed Association testified on the bill, requested certain amendments, and then worked with other stakeholders to amend the bill to ensure that the net economic impact statement on a regulation includes all new costs imposed on industry. The House Committee on Federal and State Affairs recommended the bill favorably for passage to the full House. UNDERGROUND STORAGE TANK FUND HOUSE SUBSTITUTE FOR SB 285. This bill, which also includes the contents of SB 286 and SB 287, would extend the existence of the UST redevelopment fund and
SAFE AND ABUNDANT FOOD THROUGH SOUND SCIENCE
compensation advisory board to 2032; amend the Kansas storage tank act by extending the sunset of the aboveground fund and the underground fund and increase the maximum reimbursement; and, amend the Kansas storage tank act by extending the expiration of certain reimbursement provisions to 2030 and increase the underground storage tank replacement reimbursement maximum. Kansas Grain and Feed Association, Kansas Agribusiness Retailers Association, and Renew Kansas Biofuels Association were proponents of the bill which passed the Senate on a vote of 39-0, and was then recommended favorably for passage by the House Committee on Agriculture. MULTI-YEAR FLEX ACCOUNT FOR WATER CONSERVATION SB 270. This bill allows water rights that were certified after 2009 to be placed in multi-year flex accounts, or MYFA’s. These tools, which were initially passed in 2011, allow farmers to conserve water in wet years to be used in more dry years over a five year period. The bill passed the Senate on a vote of 39-0 and was advanced favorably for passage from the House Agriculture Committee. RESOLUTION ON RATTLESNAKE CREEK SUB-BASIN SCR 1614. This Resolution supports Kansas farmers in the Rattlesnake Creek sub-basin in their ongoing effort to protect their water rights and livelihood through a collaborative solution to the region’s water impairment issue. Multiple agricultural stakeholders testified in support of this measure, including the Kansas Grain and Feed Association, Kansas Agribusiness Retailers Association, and Renew Kansas Biofuels Association. The resolution passed the Senate on a vote of 37-0, and was advanced favorably for passage from the House Committee on Agriculture. INTERIM SESSION REPORT In March, the Legislature passed a budget for the remainder of fiscal year ’20 (through June 30) and for fiscal year 2021. At the time, the state’s ending balance June 30 would have been $927 million, and was projected to be $730 million at the end of 2021. On Monday, April 20th, the Consensus Revenue Estimating Group (CRE) met and provided an updated estimate on state revenue. The Consensus Revenue Estimating Group, or CRE, is composed of representatives of the Division of the Budget, Dept. of Revenue, Legislative Research Dept., and economists from the University of Kansas, Kansas State University, and Wichita State University. According to the CRE report, following the COVID-19 outbreak, it is estimated that revenues to the state will decrease dramatically, leaving the state with only $200 million in the bank at the end of June 2020, and with a projected deficit of more than $600 million in June of 2021. These projected shortfalls are primarily due to decreases in individual income taxes (down $295 million), corporate income taxes (down $165 million) and sales taxes (down $110 million). This massive decline in state revenues will require dramatic changes to the state budget for this fiscal year and next when lawmakers return for the wrap-up session, possibly as early as next week. Governor Kelly has already instructed state agencies to eliminate discretionary spending, shelve salary increases, leave open vacant jobs, and identify other cost saving measures. Looking ahead, the CRE will meet again in the fall to revise estimates. Spring 2020
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INDUSTRYnews OSHA Issues New Respirator Guidance Courtesy: American Feed Industry Association
The Department of Labor’s Occupational Safety and Health Administration has issued new enforcement guidance on the use of respiratory protection equipment certified under international standards or other jurisdictions during the coronavirus disease pandemic.
OSHA’s memorandum provides additional interim guidance to compliance safety and health officers for enforcing the Respiratory Protection standard (29 CFR § 1910.134) and certain other health standards, with regard to supply shortages of disposable N95 filtering face-piece respirators (FFRs). All employers that have employees who are required to use, or are permitted to use respiratory protection voluntarily, must continue to manage their respiratory protection programs (RPPs) in accordance with the OSHA respirator standard. OSHA advises that they should also pay close attention to shortages of N95s throughout the COVID-19 pandemic and where possible, are encouraged to reassess their engineering controls, work practices and administrative controls to identify any changes they can make to decrease the need for N95 respirators. If respiratory protection must be used, and acceptable alternatives that are certified by the National Institute for Occupational Safety and Health (NIOSH) or ones that have exceeded their manufacturer’s shelf life are not available for use in accordance with OSHA’s April 3 memorandum, then employers may consider using respirators and filters certified under standards of other countries or jurisdictions. OSHA advises that all employers should: 20
Kansas Agribusiness Update
equipment. Equipment used beyond its manufacturer’s recommended shelf life must be used in accordance with OSHA’s April 3 memorandum. •Prioritizing efforts to use equipment that has not exceeded its intended service life (e.g., disposable FFRs used for the first time) before implementing protocols for the extended use or reuse of equipment. The extended use or reuse of equipment should follow the Centers for Disease Control and Prevention’s Strategies for Optimizing the Supply of N95 Respirators. •Using homemade masks or improvised mouth and nose covers only, as a last resort (i.e., when no respirators or facemasks •Make a good-faith effort to provide are available). Improvised masks are not workers with the most appropriate personal protective equipment and ideally respiratory protection available for the should be used with a face shield to cover hazards against which they need to be the front and sides of the face. When this protected. This should be accomplished in measure is the only resort, refer to the CDC’s this order: • Implementing the hierarchy of controls guidance. •Ensure employees know how to in an effort to first eliminate or reduce perform a user seal check each time they workplace hazards, then using engineering wear a respirator, regardless of whether it is controls, administrative controls and safe a NIOSH-certified device or device certified workplace practices to prevent worker under standards of other countries or exposures to respiratory hazards. jurisdictions. Do not allow employees to use •Prioritizing efforts to acquire and use a respirator on which they cannot perform equipment in the following order: a successful user seal check (See 29 CFR § •NIOSH-certified equipment; •Equipment certified in accordance with 1910.134, Appendix B-1, User Seal Check Procedures). standards of other countries or jurisdictions, except the People’s Republic of China, unless •Train workers on how to visually inspect FFRs to determine if the structural or equipment certified in accordance with the functional integrity of the respirator has been standards of the People’s Republic of China compromised. Over time, components, such is manufactured by a NIOSH certificate as the straps, nose bridge and nose foam holder; material, may degrade, which can affect •Equipment certified in accordance the quality of the fit and seal. Workers must with the standards of the People’s Republic understand that if the structural or functional of China, the manufacturer of which is not a integrity of any part of the respirator is NIOSH certificate holder; and compromised, to protect their health and •Facemasks (e.g., medical masks, safety, it should be discarded. procedure masks). Train employees on the procedures for the •Prioritizing efforts to acquire and sequence of donning/doffing to prevent selfuse equipment that has not exceeded its contamination. manufacturer’s recommended shelf life before allowing workers to use expired
SAFE AND ABUNDANT FOOD THROUGH SOUND SCIENCE
INDUSTRYnews DOT Provides Guidance on Compliance with Drug & Alcohol Testing Regulations DOT recognizes that we are facing an unprecedented public health emergency that is straining medical resources and altering aspects of American life, including the workplace. During this time compliance may not be possible in certain areas such as drug and alcohol testing requirements due to the unavailability of program resources. You should make a reasonable effort to locate the necessary resources. As a best practice at this time, employers should consider mobile collection services for required testing if the fixed-site collection facilities are not available. If you are unable to conduct DOT drug or alcohol training or testing due to COVID19-related supply shortages, facility closures or imposed quarantine requirements, you should document why a test was not completed. If training or testing can be conducted later (e.g., supervisor reasonable suspicion training at the next available
opportunity, random testing later in the selection period, follow-up testing later in the month), you are to do so in accordance with the applicable regulations. For example, without a “negative” pre-employment drug test result, an employer may not permit a prospective or current employee to perform any DOT safety-sensitive functions. Additionally, DOT is aware that some employees have expressed concern about potential public health risks associated with the collection and testing processes. It is the employer’s responsibility to evaluate the circumstances of the employee’s refusal to test and determine whether or not it should be considered a refusal. However, as the COVID-19 outbreak poses a novel public health risk, DOT asks employers to be sensitive to employees who indicate they are not comfortable or are afraid to go to clinics or collection sites.
DOT recognizes that we are facing an unprecedented public health emergency that is straining medical resources and altering aspects of American life, including the workplace. Source: Asmark Institute
OSHA Releases Guidance Determining COVID-19 as a Recordable Illness Courtesy: American Feed Industry Association
On April 10, the Occupational Safety and Health Administration issued an enforcement guidance with details on how employers should record occupational illnesses, specifically cases of the COVID-19. In areas where there is ongoing community transmission, employers – other than those in the healthcare industry, emergency response organizations and correctional institutions – may have difficulty determining whether workers contracted COVID-19 due to exposures at work. In light of those difficulties, OSHA is exercising enforcement discretion in order to provide certainty to the regulated community. OSHA has determined that under its recordkeeping requirements in 29 CFR
§ 1904.5, COVID-19 is a recordable illness and employers are responsible for recording cases of the disease, if: the case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention; the case is work-related, as defined by 29 CFR § 1904.5; and the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7. The American Feed Industry Association expects that it will be difficult for companies to determine whether a case of COVID-19 is work-related as defined by 29 CFR § 1904.5. However, until further notice, OSHA will not enforce 29 CFR § 1904 to require other employers to make the same workrelated determinations, except where: • There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and • The evidence was reasonably available to the employer. For purposes of this memorandum, examples of “reasonably available evidence” include information
given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees. This enforcement policy should help employers focus their response efforts on implementing good hygiene practices in their workplaces and otherwise mitigating COVID-19’s effects, rather than on making difficult work-related decisions in circumstances where there is community transmission. If it is determined that a case is work-related, COVID-19 is a respiratory illness and should be coded as such on the OSHA Form 300. Because this is an illness, if an employee voluntarily requests that his or her name not be entered on the log, the employer must comply as specified under 29 CFR § 1904.29(b)(7)(vi). This memorandum will take effect immediately and remain in effect until further notice. This guidance is intended to be timelimited to the current public health crisis. Visit OSHA’s webpage frequently for updates.
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INDUSTRYnews
FAQ for State Driver Licensing Agencies and CDL Regarding Permissible Actions During the COVID-19 The Federal Motor Carrier Safety Administration (FMCSA) has compiled this list of responses to frequently asked questions (FAQs) regarding actions State Driver Licensing Agencies (SDLA)or commercial driver’s license holders may take during the public health emergency related to Coronavirus Disease 2019 (COVID-19) that are permissible under the Federal Motor Carrier Safety Regulations (FMCSRs). -- QUESTION 4: If a State issues restricted or temporary CDLs for drivers in farm related service industries,in accordance with 49 CFR 383.3(f), during the harvesting season and the State is unable to issue plastic CDL credentials due to SDLA office closures, may the State issue paper credentials? -- ANSWER 4: Yes. The FMCSRs do not require SDLAs to issue plastic licensing credentials. However, SDLAs must issue licensing credentials in accordance with the requirements of 49 CFR part 383, subpart J. This guidance document does not have the force and effect of law and is not meant to bind the public in anyway. This guidance is intended only to provide clarity regarding existing requirements under the law. State Issuance of Commercial Learner’s Permits (CLPs) and Commercial Driver’s Licenses (CDLs) -- QUESTION 1: Does FMCSA’s Emergency Declaration exempt States from the regulatory requirements in 49 CFR parts 383 and 384? -- ANSWER 1: No. Emergency declarations issued by the FMCSA pursuant to 49 CFR §390.23(a), providing relief from certain regulatory requirements during an emergency, are only applicable to 49 CFR parts 390 through 399. -- QUESTION 2: May an SDLA use a contractor to issue or renew CLP credentials? -- ANSWER 2: Yes. The FMCSRs do not prohibit an SDLA from using a contractor to issue or renew CLP credentials. The SDLA must ensure that the requirements relating to the issuance and renewal of the CLP, as set forth in 49 22
Kansas Agribusiness Update
CFR parts 383 and 384,are met, including checking the Commercial Driver’s License Information System(CDLIS) and adding pointers to CDLIS. -- QUESTION 3: FMCSA’s Notice to SDLAs, issued on March 20, 2020, stated that the Agency would not issue a finding or substantial non-compliance determination if a State extends the expiration dates for CDLs or CLPs or if the State decides not to change the medical certification status to “not certified” or downgrade a CDL or CLP driver whose Medical Examiner’s Certificate has expired,provided the State “promptly” brings the practices back into conformance with the requirements of 49 CFR parts 383 and 384. Will there be a grace period for States to come back into compliance? -- ANSWER 3: States should make returning to compliance a priority. FMCSA expects SDLAs to bring their CDL and CLP issuance and medical certification practices back into conformance with the requirements of parts 383 and 384 within 90 days after the end of the Presidentially declared COVID-19 national emergency or within 90 days of the SDLA resuming normal operations, whichever is sooner.
-- QUESTION 5: If an SDLA renews a CLP or CDL online, may the SDLA keep the same photograph for an additional renewal cycle? -- ANSWER 5: Yes. The FMCSRs do not prohibit SDLAs from reusing the driver’s photo from the previous CLP/CDL. Endorsements -- QUESTION 6: If an SDLA renews a CDL online during the COVID-19 public health emergency and the driver holds a Hazardous Materials (HM) endorsement, may the SDLA also renew the HM endorsement without requiring the driver to retake the HM knowledge test as required under 383.71(d)(3)? -- ANSWER 6: No. Commercial drivers who wish to retain an HM endorsement during CDL renewal are required to retake the HM knowledge test in accordance with 49 CFR 383.71(d) (3) and 383.73(d)(4). FMCSA has not issued a waiver or an exemption from this requirement. -- QUESTION 7: During the COVID-19 public health emergency, may an SDLA issue a double/ triple trailer endorsement without requiring a
SAFE AND ABUNDANT FOOD THROUGH SOUND SCIENCE
INDUSTRYnews driver to pass the knowledge test required by 49 CFR 383.93? -- ANSWER 7: No. In accordance with 49 CFR 383.93, the State shall only issue a double/triple trailer endorsement to a driver who successfully completes the knowledge test. FMCSA has not issued a waiver or exemption from this requirement. Medical Examiner’s Certificates (MEC).
-- ANSWER 10: No. The Emergency Declaration issued by the FMCSA pursuant to 49 CFR § 390.23(a) (1)(i) is only applicable to 49 CFR parts 390 through 399. In accordance with 49 CFR 384.202, the State shall only issue a CLP or CDL to a driver who has passed the knowledge and skills tests required by part 383, unless an exception applies.
-- QUESTION 11: In light of the current COVID-19 public health emergency and the need to comply with social distancing guidelines, may States leverage technology (e.g., Bluetooth, in-cab cameras, cell phones) to administer the CDL skills test in a way that allows the examiners to not be physically present in the cab of the vehicle with the driver applicant while conducting the on-road test segment? -- ANSWER 11: In accordance with 49 CFR 383.131(b), SDLAs must administer tests using a test examiner information manual that FMCSA determines is comparable to AAMVA’s 2005 CDL Test System Model CDL Manual (AAMVA Model). The AAMVA Model specifies that to complete the on-road segment of the skills test, the examiner must observe a driver applicant’s operation of the vehicle and provide instruction. -- QUESTION 9: However, in light of the COVID-19 public If an SDLA’s computer system automatically health emergency, and the need to changes a driver’s medical certification integrate CDC guidance while ensuring status from “certified” to “not certified” or continued movement of emergency supplies automatically downgrades a driver’s CDL or and equipment during the public health CLP when the driver’s Medical Examiner’s emergency, FMCSA is encouraging SDLAs Certificate expires, may the driver continue to test drivers while practicing social operating a CMV in commerce during the distancing. As such, FMCSA requests States COVID-19 public health emergency? that wish to administer the skills test without -- ANSWER 9: the examiner being physically present in Yes, if FMCSA’s Waiver or Notice of the test vehicle submit a plan to the Agency Enforcement Policy, issued on March 24, and explain how their administration of 2020, applies. As explained therein, FMCSA the test will be comparable to the AAMVA will not take enforcement action against a model. The plan should detail how the State driver with an expired medical certificate if intends to (i) administer the test without the driver had a medical certificate issued for compromising safety, (ii) observe the skills a period of 90 days or longer, that was valid test from a second vehicle, (iii) leverage on February 29, 2020,and expired on or technology, and (iv) score the road test, after March 1, 2020. along with (v) any other information the State believes will help FMCSA determine whether -- QUESTION 10: the test administration is comparable to the Under FMCSA’s Emergency Declaration, AAMVA Model. States may wish to consider, may an SDLA issue a CLP or CDL to a driver for example, either having two employees without requiring the driver to take a skills in a sufficiently large follow vehicle (seated test? six feet apart) or else having one employee -- QUESTION 8: During the COVID-19 public health emergency, may an SDLA issue a CLP or CDL to a new driver applicant who does not have, and has never held,a Medical Examiner’s Certificate? -- ANSWER 8: No. Driver applicants who have never held a CLP or CDL must meet all the qualification requirements of 49 CFR part 383 in order to be issued a CLP or CDL. FMCSA’s Waiver, issued on March 24, 2020, applies to drivers with an expired medical certificate if the driver had a medical certificate issued for a period of 90 days or longer, that was valid on February 29, 2020,and expired on or after March 1, 2020. A driver applicant who has never held a medical certificate is not covered by the waiver.
in a follow vehicle while a recording device that is set up on the vehicle records the test, viewing the applicant’s performance after the examiner has stopped driving, and then immediately deleting the recording. FMCSA will consider such plans until June 30, 2020. -- QUESTION 12: A number of States are experiencing greater than normal employee absences or have closed offices of their SDLAs in response to the guidance from the U.S. Centers for Disease Control and Prevention to use social distancing to reduce the spread of COVID-19. May States leverage technology (e.g., cameras, video proctoring, cell phones, online testing) to administer the CDL knowledge tests and not be physically present? -- ANSWER 12: In accordance with 49 CFR 383.131(b), SDLAs must administer tests using a test examiner information manual that FMCSA determines is comparable to AAMVA’s 2005 CDL Test System Model CDL Manual (AAMVA Model). FMCSA is encouraging SDLAs to continue to knowledge test drivers while practicing social distancing. As such, FMCSA requests States that wish to administer the knowledge test without the examiner being physically present to submit a plan to the Agency and explain how their administration of the test will be comparable to the AAMVA model. The plan should detail how the State intends to (i) administer the test without compromising safety, (ii) observe the knowledge test without being physically present, (iii) leverage technology, and (iv) verify a test taker’s identity, along with (v) any other information the State believes will help FMCSA determine whether the test administration is comparable to the AAMVA Model. FMCSA will consider such plans until June 30, 2020. **This excerpt was shortened from its original length. For the full length please visit ksagretailers.org/ newsroom**
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