The coalition comments focused on what AAI and other agriculture organizations see as over-reaching regulatory efforts by DOL. Most prominent is the proposal’s potential impact on family farms. The coalition comments urged the department “to maintain the integrity of the family farm exemption approved by Congress.”
The department has the authority to prohibit youth employment in jobs that are “particularly hazardous” but the department’s proposal would prohibit youth from working in any job with “power-driven equipment.” Read literally, the department’s proposal would prohibit a youth under 16 from working in any job that had even simple power tools like a battery-operated screw driver. The coalition argued that DOL should withdraw the rule and make sure that it is following the intent of Congress in only addressing occupations that are particularly hazardous.

Download and read the coalition’s DOL Child Labor Comments

In addition, the new rule clears up much of the confusion regarding the duty of the commercial applicator working with the aerial applicator.  The rule states that an Iowa-based commercial applicator may apply for certification to be an aerial applicator consultant.  The Iowa Department of Agriculture and Land Stewardship has created two checklists to clarify the aerial applicator consultant’s duties and procedures.  Click here to view the aerial applicator consultant checklist. Click here to view the checklist for the application job.

IDALS is already offering consultant certification exams across the state, test schedules can be found at:  http://www.iowaagriculture.gov/Pesticide/pesticidetesting.asp .  Please contact the Pesticide Bureau at 515-281-8590 with any questions or for more information.

The amendments outline the requirements for the supervision of aerial pesticide applicators, the qualifications and duties of the aerial applicator consultant, and the procedures for aerial application.  The amendments also outline the license, certification, and continuing instruction requirements for aerial applicators operating in Iowa.  Click here for a complete copy of the new rule.

Animal waste is a source of ammonia and hydrogen sulfide releases to the air. These are hazardous substances that, when released into the environment above certain quantities, trigger notification responsibilities under federal regulations. The reportable quantity for ammonia and hydrogen sulfide is 100 pounds within any 24-hour period. Prior to the exemption, all operations that had releases exceeding the reportable quantity were required to notify federal, state and local governments.

The exemption created by the new rule does not impact EPA’s authority to respond to citizen complaints or requests for assistance from state or local government agencies to investigate releases of hazardous substances from farms. Releases of anhydrous ammonia greater than 100 pounds in a 24-hour period, must still be reported no matter the size of the farm. Also, the rule does not apply to animal waste that is not associated with farms, such as from meat packing and research facilities.

Frequently Asked Questions

Q:  Who is exempt from this air reporting requirement?

A: The new rule exempts farms confining fewer than:

• 700 mature dairy cows, whether milked or dry
• 1,000 veal calves
• 1,000 cattle other than mature dairy cows or veal calves (“Cattle” includes, but is not limited to, heifers, steers, bulls and cow/calf pairs.)
• 2,500 swine each weighing 55 pounds or more
• 10,000 swine each weighing less than 55 pounds
• 500 horses
• 10,000 sheep or lamb
• 55,000 turkeys
• 30,000 laying hens or broilers, if the farm uses a liquid manure handling system
• 125,000 chickens (other than laying hens) if the farm uses other than a liquid manure handling system
• 82,000 laying hens, if the farm uses other than a liquid manure handling system
• 30,000 ducks (if the farm uses other than a liquid manure handling system)
• 5,000 ducks (if the farm uses a liquid manure handling system).

Q:  How do I calculate the normal range of air releases?

A:  The amount of ammonia and hydrogen sulfide released will vary considerably, depending on feed, temperature, type of confinement and manure handling.  It is up to the owner/operator to perform good faith release calculations for normal lower and upper limits.

Information helpful to making these calculations can be obtained from a variety of sources, including the following Web sites. (EPA Region 7 does not specifically endorse any of the information found on these sites).

• Kansas State & Texas A&M University partnership – http://cafoaq.tamu.edu/
• Iowa State University – http://www.extension.iastate.edu/airquality
• University of Nebraska-Lincoln – http://manure.unl.edu/

Q:  If I’m not exempt from this reporting requirement, what is the process to report the air releases?

A: There is a three-step process to report continuous releases.

Step 1: You must call state and local agencies: the State Emergency Response Commission (SERC) and the Local Emergency Planning Committee (LEPC).   The contact numbers for the SERCs are as follows: Iowa (515) 281-8694; Kansas (785) 296-1679; Missouri (573) 634-2436; and Nebraska (402) 471-2186. www.epa.gov/oem/content/epcra/serc_contacts.htm

The LEPC is usually associated with your county emergency management agency, whose telephone number should be in your local telephone directory, or accessible via the internet: http://yosemite.epa.gov/oswer/lepcdb.nsf/HomePage?openForm

Step 2: Within 30 days of the call that you made in Step 1, the person in charge of the farm operation must complete and submit a continuous release form to the SERC and LEPC.  The form can be downloaded at: http://www.epa.gov/emergencies/docs/chem/cont_rel/Continuous%20Release%20Form.pdf.

Guidance for completing the form is found at: http://www.epa.gov/superfund/policy/release/faciliti.htm.

Step 3: On the first anniversary date of the initial written notification, you need to reassess and confirm the accuracy of your calculations to the SERC and the LEPC in writing.

Under the continuous release reporting regulation, no further reporting is required for the routine air releases covered under your specific report unless the rate, quantity, or ownership changes.  If such a change occurs, you will need to repeat the three-step reporting process outlined above, or make separate daily reports for those days.  Also, if you signed up for the Air Compliance Agreement study, or if you have already filed a continuous release report, no action is required at this time. You may be required to file a new report, or update your previous report, when the air study agreement is completed.

Q:  Where do I get further information on the continuous release reporting process?

A:  Contact EPA Region 7 Environmental Engineer Patricia Reitz, reitz.patricia@epa.gov , (913) 551-7674, (800) 223-0425.

Q:  Where can I find information pertaining to the CAFO exemption?

A:  The full text of the new rule exemption for smaller operations can be found at: http://www.epa.gov/emergencies/docs/chem/CERCLA_EPCRA_final_rule_unsigned.pdf

With the DOT safety alert issued Tuesday, December 22, 2008 and in our efforts to ensure compliance with DOT regulations, we wanted to bring this latest issue to your attention.

If you have any questions, please contact Pam Guffain by telephone at (202) 515-2704 or via e-mail at pguffain@tfi.org.

In all of the investigations, PHMSA Hazmat Investigators noted a similar pattern of non-compliance and safety problems.  Click here to read a list of the areas of non-compliance and safety problems and to read the letter in its entirety.

Background: According to state sources, Iowa has approximately 26,000 NH3 tanks with an estimated one third of those without data-plates.  These ASME (American Society of Mechanical Engineers) plates are affixed to tanks at the date of manufacture.  Iowa regulations require maintenance of ammonia tanks that are inspected regularly by IDALS. (Iowa Department of Agriculture).  In the normal course of maintenance many of the date-plates have been lost.

In March 2004 TFI (The Fertilizer Institute) initiated action behalf of eight of their members for an exemption.  On January 10, 2005 the USDOT granted the TFI request for an exemption from certain requirements in DOT’s “Hazardous Materials Regulations.”  (Download USDOT document here). Current federal law requires that all ammonia nurse tanks carry an American Society of Mechanical Engineers (ASME) identification plate.  In its application for an exemption, TFI indicated that its members have ample reason to believe that the nurse tanks, which may have lost their nameplates due to the ravages of time and weather, still meet DOT safety standards. As such, TFI requested an exemption from the date-plate requirement and expressed the industry’s willingness to work with DOT to demonstrate the safety of the tanks.

AAI Actions: AAI members approached AAI asking for assistance due to the large volume of tanks that would need testing in the state.  Minnesota had a data-plate testing program that was implemented several years ago and appeared to be recognized by the USDOT.  AAI worked with IDALS to create a similar program that would allow tanks to be registered in Iowa and come under the jurisdiction of the state.  Up until this time, it was assumed that the state of Iowa (IDALS) had jurisdiction over ammonia tanks in conjunction with the IDOT and USDOT much as the state of Minnesota had.

On August 26, 2005, Minnesota received word that their certification program was not acceptable to the USDOT.  With that determination, the Iowa program was also deemed unacceptable.  USDOT stated that NH3 tanks must conform to Hazardous Materials Regulations (HMR 49 CFR Parts 171-180)

What Must You Do to Come in Compliance?

Any nurse tank authorized under 173.315(m) for which the ASME nameplate has become indistinct, or the nameplate is lost or illegible, must come into compliance with the applicable marking requirement in the ASME Code.  To do this, the owner of the nurse tank must first provide documentation to the original manufacturer that demonstrates that the nurse tank was designed and constructed in accordance with the

ASME code.  Once this occurs, the manufacturer will be in a position to issue and stamp a replacement ASME nameplate.  Replacement ASME nameplates must be attached in accordance with the (NBIC) National Board Inspection Code, Part RB 1030(b).  The only other alternative is to apply for a new exemption or obtain party status to an applicable exemption as specified under Part 107, Subpart B.

In granting the exemption, DOT will require nurse tanks without the identification plate to be inspected and tested by doing an external visual inspection, thickness test and pressure test. DOT will also require nurse tanks to be retested and reinspected every five years. In addition, each owner of a nurse tank operating under the exemption must maintain a copy of the test report; a current copy of the exemption must be maintained at the facility where the nurse tank is tested and offered for transportation; and each nurse tank must be plainly and durably marked with the exemption number and with a unique owner’s identification number.{mospagebreak}

AAI continued efforts to work with the USDOT.  Following a conference call on October 19, 2005 with state, federal and association leaders that included our general counsel negotiations ceased and on December 15, 2005 the AAI Ammonia Tank Task Force met to make recommendations.

Recommended Actions:

The AAI Agronomy Committee Task Force is in concurrence with ARA (Ag Retailers Association) and recommends the follow actions be taken by AAI members actively engaged in the sale and transportation of anhydrous ammonia:

Options to Consider: (source ARA)
Retailers have several options to consider related to NH3 nurse tanks that do not have the required tank identification plates.

• 1) Remove the nurse tank from service. Remove all product and bleed the tank empty.
• 2) Register for the DOT Exemption.

a. TFI, their eight member companies, and Asmark Institute have developed a database called Nurse Tank Inspection Program (NTIP). Retailers can register each facility location with the NTIP via TFI’s web site.

• 3) Remain non-compliant and risk extensive fines levied by state DOT regulators. ARA does not recommend this option as it creates many risk and liability issues.

AAI, in concurrence with ARA, encourages ag retailers to register for the DOT Exemption under the TFI Exemption, or some other comparable exemption offered by other regulatory service providers.  Additionally, record keeping of all existing tanks is strongly recommended and contact with your insurance carrier would/could be beneficial.
NH3 NURSE TANK TESTING REQUIREMENTS (source ARA)
The DOT exemption provides a method for facilities with nurse tanks without the identification plate to (1) perform an external visual inspection test; (2) conduct a hydrostatic inspection test; and (3) conduct a thickness inspection test.  A registered inspector must perform these inspection tests, which may be a company employee who meets the requirements of the DOT regulations. The tank exemption must be renewed every two years and re-inspected every five years and marked with the exemption number and a unique company identification number.

Upon securing “party status” from DOT your business will need to identify a DOT approved inspector who will be conducting the required inspection tests. If you need assistance for party status, you may contact DOT directly thru their web site.
Where Do I Find A Cargo Tank Inspector  (Source TFI)
In order to perform or witness the inspections and tests required to receive the DOT-E 13554 exemption, inspectors must be registered and possess a Cargo Tank (CT) registration number from the Federal Motor Carrier Safety Administration (FMCSA). Each individual ammonia retailer will need to work with their inspectors to be sure they are registered.

The following USDOT site lists registered cargo tank inspectors as of 12-15-05:http://mcmis.volpe.dot.gov/mcs150t/PKG_CT_PUBLIC.PRC_PROCESS_SEARCH

More information regarding tank certification can be found on The Fertilizer Institute webpage at: http://www.nursetank.org/

The Future of NH3 Tanks
Based on the meeting with the USDOT, it is anticipated that ALL (not just those without data plates) ammonia tanks will soon be required to do testing on a regular basis.  Currently these tanks are the only pressure vessels on the road that are not required to be tested on a regular basis.  Although a timeframe for these actions have not been determined, AAI has reason to believe that rule making will begin in Washington within the next year.

Replacement Data Plates — Is that an Option?
The Illinois Fertilizer & Chemical Association recently researched the requirement to obtain replacement data plates and though discovery found the following:

IFCA has looked into what is involved in acquiring a new ASME data plate in order to keep nurse tanks in service if the tanks data plates are missing or illegible.  According to one company that manufactures anhydrous ammonia nurse tanks, in order to get a data place re-issues there must be at least three pieces of information recovered from the data plate.  Information that needs to be on the plate is (1) the tank manufacturer, (2) year of manufacture and (3) the serial number of the tank.

An application must be sent to the regional supervisor of boiler and pressure vessels which is the Illinois State Fire Marshal.  The application must include a rub or digital picture of the data plate in question.  An application also must be sent to the original manufacturer of the nurse tank so that they can review it and determine if there is enough legible information to issue a new plate.  If it is determined by both OSFM and the manufacturer that there is enough legible information to re-issue a new plate, then the owner of the tank must make arrangements to have the plates re-attached by the original manufacturer of the nurse tank.  A representative from the Illinois Sate Fire Marshal’s office must also be present to witness the re-attachment of the data plate to the nurse tank.  If the Fire Marshal’s office determines there is not enough legible information to issue a new data plate, they can order the tank be taken out of service.

IFCA spoke with the tank manufacturer and they estimated the cost to visit a facility and re-attach a data plate is about $400/day plus all travel expenses.  One of the problems with this procedure is not all companies that manufactured nurse tanks are still in operation and other companies are not willing to re-issue a data plate on a tank they did to manufacture due to liability issues.  If a data plate is completely missing or there is not enough information legible on the data plate, then the manufacturing company will not re-issue the new plate because they will not be able to track the tank from the time of its original manufacture.

sources cited:  USDOT, ARA, TFI, IFCA

The Fertilizer Institute http://www.tfi.org/ (NTIP Program)
Ag Retailers Association www.aradc.org/index.php
Agribusiness Association of Iowa http://www.agribiz.org/
Illinois Fertilizer & Chemical Association

Federal Motor Carrier Safety Administration Cargo Tank Facilities-  http://mcmis.volpe.dot.gov/mcs150t/PKG_CT_PUBLIC.PRC_PROCESS_SEARCH

Notice is also given to the public that the Administrative Rules Review Committee may, on its own motion or on written request by any individual or group, review this proposed action under section 17A.8(6) at a regular or special meeting where the public or interested persons may be heard.

Pursuant to the authority of Iowa Code sections 307.10 and 307.12 and Iowa Code Supplement section327F.13, the Department of Transportation hereby gives Notice of Intended Action to adopt Chapter 813, “Close-Clearance Warning Signs Along Railroad Tracks,” Iowa Administrative Code.

Iowa Code Supplement section 327F.13 requires the Department of Transportation to adopt rules concerning close-clearance warning signs along railroad tracks where the clearance between the tracks and an obstruction along the tracks physically impedes a person who is lawfully riding on the side of a train from clearing the obstruction. New Chapter 813 implements this rule-making requirement.

This chapter does not provide for waivers. Any person who believes that the person’s circumstances meet the statutory criteria for a waiver may petition the Department for a waiver under 761—Chapter 11.

The proposed rules may have an impact on small business. A request for a regulatory analysis pursuant to Iowa Code section 17A.4A must be submitted to the Office of Policy and Legislative Services (800 Lincoln Way, Ames, Iowa 50010; fax (515)239-1639; Internet E-mail address: tracy.george@dot.iowa.gov) by September 2, 2008. These rules are intended to implement Iowa Code Supplement section 327F.13.

PROPOSED RULE-MAKING ACTION:  ADOPT THE FOLLOWING NEW 761—CHAPTER 813:  CLOSE-CLEARANCE WARNING SIGNS ALONG RAILROAD TRACKS

761—813.1(327F) Purpose and scope. This chapter implements Iowa Code Supplement section 327F.13.
This statute requires the Iowa department of transportation (department) to implement the placement of close-clearance warning signs along railroad tracks where the close clearance between the tracks and an obstruction physically impedes a person who is lawfully riding the side of a train from clearing the obstruction. This chapter only applies when funds are available from the department to reimburse the owner of the railroad track for the cost of the close-clearance warning sign and installation.

761—813.2(327F) Applicability. This chapter applies to railroad companies as well as industries, agricultural cooperatives or other entities that are owners of railroad track. This chapter does not apply to any railroad whose locomotives are powered by overhead or suspended electric power.

761—813.3(327F) Information. Information regarding this chapter is available from the Office of Rail Transportation, Iowa Department of Transportation, 800 Lincoln Way, Ames, Iowa 50010; telephone (515)239-1140.

761—813.4(327F) Definitions. “Close clearance” means a location along railroad tracks where there is an obstruction that falls within the following dimensions: starting at the centerline of track at top of rail and
extending 5 feet both sides horizontally and level therewith, thence upward vertically 15 inches, thence upward diagonally to a point 4 feet above top of rail and 8 feet laterally from centerline of track, thence vertically to a point 14 feet above top of rail.

“Obstruction” means a building, machinery, tree, brush or other object.
“Owner” means the railroad company, industry, agricultural cooperative, or other entity which holds a fee simple title, easement, leasehold, contract to purchase, license, or other legal or equitable interest or right in
the railroad track, and is in primary possession and control of the railroad track.

761—813.5 Reserved.

761—813.6(327F) Dimensions and placement.
813.6(1) A close-clearance warning sign shall be placed in a location that provides adequate notice to a person riding the side of a train so that the person may prepare for the close clearance. A close-clearance warning sign shall comply with the following:

a. Include the words “no clearance.” The letters must be black on a white reflective background and be a minimum of 3 inches high.
b. Be a vertical sign not less than 42 inches in height and 4 inches in width.
c. Be placed at least 1 foot off the ground or on the obstruction and within 3 feet of the close-clearance location or on the obstruction. Signs shall be located on both sides of the obstruction so as to be visible from both directions.
d. Not be within 8 feet of the centerline of the tracks.

813.6(2) In the event that the physical environment prevents the placement of a warning sign in accordance with paragraphs 813.6(1)“c” or 813.6(1)“d,” the sign shall be placed in a highly visible location that is clearly indicative of the point of close clearance. An alternative size and shape of sign may be used if there is no location available where a standard size and shape sign may be used. Any alternative sign must clearly be identifiable as an indicator of the close-clearance situation.

813.6(3) Placement of a warning sign does not relieve the owner of a railroad track from any duties required under Iowa Code chapter 317 or Iowa Code section 327F.27.

761—813.7 and 813.8 Reserved.

761—813.9(327F) Requirements.
813.9(1) A close-clearance warning sign is required at all locations where there is close clearance. It is the responsibility of the owner of the railroad track to ensure that all close-clearance locations have warning signs.
813.9(2) If the owner of the railroad track is provided written notice by an employee, a person working on or near the tracks, or a railroad inspector that a location is in need of a close-clearance warning sign, the owner of the railroad track shall investigate and, if warranted, ensure the placement of a warning sign within 30 days of notification. If a close-clearance warning sign is not warranted, the owner of the railroad track shall inform the person who provided notice, in writing within 30 days, that a sign is not warranted and shall explain why the location does not need a close-clearance warning sign.
813.9(3) If the owner of the railroad track fails to respond to a notice by an employee or another person working on or near the tracks, or if the employee or other person disagrees with the railroad track owner’s determination that a warning sign is not warranted, the employee or other person may notify the department. The department shall investigate and make a determination if the location warrants the placement of a close-clearance warning sign.
a. If the department determines a close-clearance warning sign is warranted, the owner of the railroad
track has 14 days to install the proper warning sign. Failure to install the close-clearance warning sign is evidence that the owner of the track is in violation of Iowa Code Supplement section 327F.13.
b. The owner of the railroad track or person working on or near the tracks may contest the determination.  If the determination is contested, 761—Chapter 13 applies.

761—813.10(327F) Reimbursement. The owner of the railroad track may request reimbursement of $200 per sign from the department for the close-clearance warning sign and installation. The owner shall certify the proper placement and location of each warning sign and certify the warning sign meets the requirements in rule 761—813.6(327F).

These rules are intended to implement Iowa Code Supplement section 327F.13.

Since Wage Hour has approximately 750 investigators nationwide, they normally are able to investigate only one-half of covered firms in a given year. However, you may be one of the “lucky” ones and become scheduled for an investigation.  First, you should understand that Wage Hour has the authority to investigate any employer they choose and they do not have to disclose the reason for the investigation.  However, nearly all investigations are conducted because Wage Hour has received information that the employer may not be paying employees correctly; Wage Hour has received information that the employer is employing minors (contrary to child labor requirements); or the employer is in a “targeted” industry. Investigations vary in length due to several factors, including the size of the business, complexities of the firm’s pay plan, and schedules of both the employer and the investigator.  Some investigations may be completed in a day, while others may take months.

Wage Hour also has an informal procedure, known as a conciliation, where they will phone (or write) an employer stating that an employee has alleged he/she was not paid properly.  They ask the employer to look into the allegation and report back to them.  If the parties can resolve the issue through this “conciliation” process, Wage Hour will not come to the establishment and conduct a full investigation.  If the problem is related to a group of employees or a department, in many instances Wage Hour will ask the employer to rectify the problem with that group of employees rather than instituting a full investigation.

First, a comment regarding complaints and the person(s) making complaints: Wage Hour receives complaints from many different sources, including current employees, former employees, competitors, employee representatives, and other interested parties.  Wage Hour has a policy of not disclosing the name(s) of the complainant unless the complaining party has given written permission for them to do so.  Therefore, unless they are only looking at the pay practice related to a single employee, Wage Hour normally will not tell you if there is a complaint and will not identify the complaining party.

With respect to child labor investigations, they are typically scheduled for one of two reasons.  (1) Each year they will target an industry, fast food restaurants or grocery stores for example, that has a history of employing minors contrary to the requirements of the Act.  (2) They have received information that a minor was injured while working for the firm.  A copy of each Workers Compensation Accident Report relating to the injury of a minor is forwarded to Wage Hour for review.  If they have reason to believe the minor was employed in a prohibited activity, they will schedule an investigation.

In addition to the above reasons for investigations, each year Wage Hour selects a few industries to target for enforcement.  They pick industries that have a history of non-compliance with the Fair Labor Standards Act (FLSA) and will investigate a large number of employers in the industry.  A few years ago they selected the poultry processing industry and investigated approximately one-third of all processing plants in the country.  As a result there is some litigation still pending in Alabama from an investigation that was completed in 1999. In recent years, they have looked at the health care industry, fast food establishments, and construction industry.  Although some targeted activities are national, in most cases they vary from state to state.  For example, during the past year there has been a concerted activity in Alabama that targeted grocery stores.

Although on rare occasions Wage Hour will make an unannounced visit, the employer will normally be contacted by phone or letter to schedule an appointment to begin the investigation.  Once the appointment is confirmed, Wage Hour will come to the employer’s place of business to begin the investigation.  The investigator will begin the investigation by conducting a conference with the person in charge to gather information regarding the firm’s ownership, types of activities, and pay practices.  The employer may have whomever he/she would like at this conference, including legal counsel. It is always advisable to be cooperative and courteous.

After the conference the investigator may ask to tour the establishment so that he/she may better understand how the business operates.  The investigator will then ask to review the payroll and time records for the past two years. Wage Hour realizes that many employers outsource their payrolls to a third party or have them prepared at another location.  If this is the situation, the employer can authorize the investigator to review the records at another location, or he may arrange to have them brought to the establishment.

The investigator may ask the employer to make photocopies of certain records.  Although the employer is not required to do so, the investigator has the authority to gather this information and the making of copies will expedite the investigation process.  Thus, most employers find that it is beneficial to furnish the photocopies.  It is suggested that the employer also retain a copy of all records provided to Wage Hour in the event the matter is not resolved and litigation is begun.

Once the investigator has completed a review of the records, he/she will want to conduct confidential interviews with a sample of the current employees at the establishment during normal working hours.  The employer is not required to allow the investigator to do this at the establishment; however, if not allowed to do so at the establishment the investigator will contact the employees away from the business.  Most employers find that allowing the interviews to be conducted at the establishment is better than forcing the investigator to contact the employees at home or other locations.  Again, the easier it is for the investigator to complete his assignment, the quicker he/she will be finished and gone.
{mospagebreak}
After the fact-finding phase of the investigation is completed, the investigator will schedule another conference with the employer to discuss the findings.  As with the initial conference, the employer may have a legal representative at the conference. If the investigator determines that the employer has not complied with the FLSA, he/she will discuss the issues and ask for an explanation of the matter.

The employer will then be asked to agree to make changes in the pay system to comply with the Act. Once an agreement is reached for future compliance the employer will be asked to pay back wages to the employees that have not been paid correctly.  In many instances, as provided by the regulations, the employer will be asked to compute the amounts due to each employee and submit them to the investigator for review and approval.   If the investigator agrees with computations that were submitted, he/she will negotiate a payment schedule with the employer to distribute the back wages to the employees.

Note:  Wage Hour does not have the authority to force an employer to pay back wages except through litigation.  If the employer (or his representative) and the investigator cannot reach an agreement to resolve the matter, the employer may request a meeting with the investigator’s supervisor.  If no agreement is reached at that level, listed below are some of the options for Wage Hour.

1. Wage Hour may bring an action in Federal District Court to compel the employer to comply with the FLSA and to pay the back wages that are due the employees.  If this action is taken they will typically sue for a three-year period (vs. a two-year period for investigations that are resolved through negotiation), as they will allege willful violation of the Act.  In addition they will ask for liquidated damages in an amount equal to the amount of back wages that are due.
2. Wage Hour may also assess penalties for repeated and/or willful violations of the minimum wage and overtime provisions of the Act of up to $1100 per employee.  If minors were found to be illegally employed they may assess penalties of up to $11,000 per minor.
3. In situations where Wage Hour chooses not to pursue litigation, they may notify the employees of the fact that they are due back wages and of the employee’s right to bring a private suit to recover back wages.  Additionally, the employee will be informed of his right to recover liquidated damages, attorney fees and court costs.
4. Employers should also be aware that employees may bring a suit under the FLSA without contacting Wage Hour.  There are attorneys that specialize in Wage Hour suits. As a result there has been more private FLSA litigation in recent years than under any of the other employment statutes.  In 2007, the ten largest Wage Hour settlements resulted in employers paying for more that $300 million in back wages.

In summation, if you are one of the “chosen” ones, be cooperative and courteous to the investigator so that the investigation can be completed as quickly as possible.  However, you should only provide the information requested and only respond to the questions that are asked.  Further, if you are asked a question that you do not feel comfortable answering, stall the investigator while you seek guidance from your legal representative.

Lyndel L. Erwin, Wage Hour Consultant
Lehr Middlebrooks & Vreeland, P.C.
2021 Third Avenue North
Birmingham, AL  35203
205-323-9272 (direct)
205 326-3008 (telefax)
lerwin@lehrmiddlebrooks.com

Regulations do not allow a driver to have both a regular CDL and a Restricted CDL.  So, if a driver has a CDL without a hazmat endorsement, he may not get the Restricted CDL to assist a co-op in transporting anhydrous ammonia to the farm fields and carry both licenses.  He would have to add the hazardous material endorsement to the regular CDL.

IADOT standard procedure is that if a driver drops a CDL, he/she must complete all the testing, knowledge and skills, to regain the CDL.  Early on during the onset of the haz mat security threat assessment program, IADOT had allowed drivers to drop the regular CDL and apply for the Restricted CDL and at the end of the season we allowed the driver to then regain the regular CDL without the knowledge and skills testing.  This was due to the delays in the completion of the security threat assessments.  However, now that the process has been significantly improved, IADOT has discontinued waiving the retesting requirement.  This was effective January 1, 2008.

Somehow, this has been incorrectly translated into meaning that Iowa no longer issues Restricted CDLs.

IADOT and AAI wants to confirm that Iowa does indeed continue to issue Restricted CDLs.  The only change is that if a driver wants to drop an existing CDL to obtain the Restricted CDL, he/she will have to take all testing to regain the original CDL.

General information related to the Restricted CDL:

Question:  What are the seasonal periods for use of the Restricted CDL?

Answer:  March 15 through June 30 & October 4 through December 14.

Question:  Is there a mileage restriction on the use of the Restricted CDL?

Answer:  Yes.  The driver may operate between the employer’s place of business and the farm currently being served, not to exceed 150 miles.

Question:  What may be transported?

Answer:  The rule allows the licensee to drive a commercial motor vehicle for agricultural input purposes.  ”Agricultural inputs” means suppliers or applicators of agricultural chemicals, fertilizer, seed or animal feeds.

Question:  Is hazardous material included?

Answer:  A Restricted CDL is not valid for transporting hazardous materials requiring placarding, except as follows:

(1)  Liquid fertilizers such as anhydrous ammonia may be transported in vehicles or implements of husbandry with total capacities of 3,000 gallons or less.  A hazardous material endorsement is not required.

(2)  Solid fertilizers such as ammonium nitrate may be transported provided they are not mixed with any organic substance.  A hazardous material endorsement is not required.

Question:  Can tank vehicles and vehicles equipped with airbrakes be operated with the Restricted CDL?

Answer:  Yes.

Question:  When not driving a commercial motor vehicle for agricultural input purposes, is the license valid for non-commercial motor vehicles?

Answer:  Yes.

Question:  Must the Restricted CDL be re-validated for each season?

Answer:  Yes.  The driver must appear at a driver license station during the current season or not more than 30 days before the beginning of the season to validate the license.

Question:  Is testing required?

Answer:  No.

Question:  Must the driver have a good driving record?

Answer:  Yes.  The applicant must have two years of previous driving experience.  This means that he/she must have held a license that permits unaccompanied driving for at least two years.  The applicant must be at least 18 years of age.  The driver license examining staff will review the driving record for the previous two-year period.  There must be no suspensions, revocations, disqualifications, denials, bars or cancellations of any kind.  Traffic offenses that would prevent the issuance of a Restricted CDL are similar to the serious and major offenses that contribute to CDL disqualification.