The bill was passed by both the Senate and the House of Representatives unanimously. Once signed into law, fertilizer plants will achieve increased production thru-put. Additionally, fertilizer producers will realize significant cost savings without jeopardizing public or worker safety.

AAI supported SF 2280 and worked with member representatives to secure its passage and is pleased with this outcome. AAI and our lobbying team is confident that Governor Branstad will sign the bill and have left messages with his office that the bill is great policy and regulatory reform and should be signed.

The bill, now titled Senate File 2280 (SF 2280), has been introduced and is eligible for senate floor debate.  With bill passage, fertilizer plants will achieve increased production thru-put.  Additionally, fertilizer producers will realize significant cost savings without jeopardizing public or worker safety.

AAI supported SSB 3158 and worked with member representatives to secure its passage out of committee.  AAI and our lobbying team will monitor the progression of SF 2280 and keep our members informed of its progress through the legislature.

On February 16, Florida Gov. Rick Scott signed legislation, passed unanimously by the Legislature and approved by the Florida Environmental Regulations Commission (ERC), that would ensure the EPA does not overstep its authority and implement federal numeric nutrient criteria in the state.  The legislation directs the Florida Department of Environmental Protection (FDEP) to submit their own Numeric Nutrient Criteria rules to EPA for approval.

“Our rules provide a clear process for identifying waters impaired by nutrients, preventing harmful discharges and establishing necessary reductions. They provide a reasonable and predictable implementation strategy, and avoid unnecessary costs for Florida’s households and businesses,” said FDEP Secretary Herschel Vinyard in response to Gov. Scott signing the legislation.  “We are pleased that we will now be able to submit our widely supported rules for final EPA approval. It’s important to start addressing our nutrient challenges, and we look forward to getting these rules on the books and implemented as soon as possible,”  added Vinyard.

In addition to the state legislation, on February 15, U.S. Senator Bill Nelson (D-Fla.) sent a letter to Administrator Jackson in support of the FDEP rule and urged the Administrator “to promptly review and approve” the Florida rule.  On February 16, Sen. Marco Rubio (R-FL) introduced a companion bill to the “State Waters Partnership Act of 2012” (H.R. 3856) filed by Rep. Steve Southerland (R-Fla.) that “would force the U.S. Environmental Protection Agency (EPA) to adopt Florida’s science-based numeric nutrient criteria on water quality regulation.”

As stated in the letter, EPA has acknowledged that states must take the lead in addressing nutrients.  AAI and the other signees agree with this and believe that states are best suited to deal with issues related to their unique landscapes and climates.

“LightSquared’s proposal to provide ground-based mobile service offered the potential to unleash new spectrum for mobile broadband and enhance competition. The Commission clearly stated from the outset that harmful interference to GPS would not be permitted. This is why the Conditional Waiver Order issued by the Commission’s International Bureau prohibited LightSquared from beginning commercial operations unless harmful interference issues were resolved,” FCC Spokesperson Tammy Sun shared in a statement on Tuesday.  “This proceeding has revealed challenges to maximizing the opportunities of mobile broadband for our economy. In particular, it has revealed challenges to removing regulatory barriers on spectrum that restrict use of that spectrum for mobile broadband. This includes receivers that pick up signals from spectrum uses in neighboring bands.”

The Defense Department, legislators, agriculture industry and GPS receiver manufacturers have been critical of LightSquared operating signal being too close to the spectrum that GPS receivers use. LightSquared claims that GPS receivers are poorly designed while the GPS receiver manufacturer believe that their instruments are too sensitive to filter out LightSquared’s cell signals.

Senator Chuck Grassley (R-Iowa)

Since last April, Senator Chuck Grassley of Iowa has asked the U.S. Federal Communications Commission for documents related to the agency’s decision to fast-track the LightSquared broadband wireless project, despite concerns of widespread interference with global-positioning system devices. Iowa Senator Chuck Grassley released the following statement on the decision, ““The FCC’s action seems to acknowledge the point I’ve been making since April.  Prematurely granting a conditional waiver in a rushed process is not the way to get the right result.  Now that the interference issue is settled, we need to find out more than ever why the FCC did what it did.  The agency put this project on a fast track for approval with what appears to have been completely inadequate technical research.  After all of this time and expense, still, no one outside of the agency knows why.  That’s not the way the people’s government should work.  The public’s business ought to be public.  Now that the FCC has backtracked on LightSquared, I’d like to see my Senate colleagues join my document request, especially the chairman of the only Senate committee that the FCC is willing to answer.  If we don’t find out how and why the FCC failed to avoid this controversy, then it will keep operating as a closed shop instead of the open, publicly accountable agency it should be.”

After the FCC’s decision, rumors of impending bankruptcy started to circulate.  LightSquared is the biggest investment of the Harbinger Capital Partners fund. “It is clearly not on the table,” said fund manager Phillip Falcone in an email to Reuters on Wednesday in response to the rumors.  On Thursday, The Wall Street Journal reported that LightSquared is pursing the possibility of swapping spectrum with the Defense Department as a way to move forward.

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

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

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

IT SHOULD BE NOTED THAT THE FOLLOWING IS ONLY A BRIEF SUMMATION OF THE UNIFORM COMMERCIAL CODE SECURITY INTEREST ATTACHMENT AND PERFECTION PROCEDURE AND THE AGRICULTURAL SUPPLY LIEN STATUTE.  THE FOLLOWING IS NOT A SUBSTITUTE FOR INDIVIDUAL LEGAL ADVICE WITH RESPECT TO ANY GIVEN SECURITY INTEREST, LIEN, OR TRANSACTION.  A PERSON WISHING TO TAKE ADVANTAGE OF THESE STATUTES SHOULD CONSULT AN ATTORNEY, EXPERIENCED IN THIS AREA, FOR ADVICE AND ASSISTANCE.

The following summarizes the means by which an Iowa agricultural supply dealer (“dealer”) can obtain and perfect a security interest in crops or livestock of an agricultural producer customer (“farmer”).
UCC Security Interest.  The most common method for any supplier to protect its interest in collateral is to obtain and perfect a security interest under the Uniform Commercial Code (UCC).  In order for a dealer to obtain an enforceable security interest in collateral, such as a farmer’s livestock or crops, the security interest must first attach to the collateral.  A security interest attaches when the dealer satisfies three specific requirements:

(1) value must be given;
(2) the debtor must have rights in the collateral or the right to convey the collateral to a secured party; and
(3) the dealer must obtain a security agreement that contains a description of the collateral and is signed by the farmer.

In general, the first two requirements will be satisfied where a dealer conveys supplies to a farmer with respect to livestock or crops in which the farmer has rights.  The third requirement, a security agreement, is essentially a contract between the dealer and the farmer.  The security agreement must contain:
(1)a sufficient description of the collateral.  With respect to crops, the description of the collateral must include a description of the real estate where the crops are produced or located.  A description such as “all crops for the 2008 season” would not be sufficient in a security agreement unless it also describes the location of the real estate on which the crops are to be grown.  With respect to livestock, the security agreement does not have to describe the physical location of the livestock.

(2)The dealer must perfect its security interest by filing a financing statement covering the collateral with the Iowa Secretary of State.  The filing of the financing statement with the Secretary of State puts other potential creditors on notice of the dealer’s security interest in the collateral.  The financing statement must include the debtor’s name, the name and  mailing address, of the secured creditor (the dealer), an indication of the collateral covered, and whether the debtor is an individual or an organization.  The indication of collateral in the financing statement does not have to be as detailed as the description of collateral in the security agreement.   If the debtor is an organization, the financing statement must also state the type of organization (i.e. corporation, LLC, LLP), the state in which the debtor is organized, and the debtor’s organizational identification number.

A dealer who properly perfects a security interest in a farmer’s crops or livestock will have priority over any subsequent security interests in those crops or livestock.  However, if another creditor, such as the farmer’s financial institution, already has a perfected security interest in the crops or livestock, that creditor’s security interest will be superior to that of the dealer.  Therefore, a dealer should also consider obtaining an agricultural supply lien, in addition to the UCC security interest lien, to possibly obtain an equal position to that of the farmer’s financial institution.

Agricultural Supply Lien.  If a dealer sells supplies to a farmer and the farmer’s financial institution has a pre-existing interest in the farmer’s crops or livestock, the dealer’s security interest will generally have lower priority than the security interest of the financial institution.  Chapter 570A of the Iowa Code provides a mechanism that allows a dealer to obtain an agricultural supply lien covering a farmer’s crops or livestock.  If the dealer follows the procedures of Chapter 570A, the agricultural supply lien may have equal priority to the financial institution’s interest.

The agricultural supply lien is available to a dealer for the retail cost of furnishing agricultural chemicals, fertilizer, seed, feed, and petroleum products used for an agricultural purpose.  With respect to supplies used in the production of crops, the lien applies to all crops produced on the land to which the farmer applied the agricultural supplies.  With respect to livestock, the lien applies to all livestock which consumed the feed.

The steps with respect to this agricultural supply lien are:

(1) The dealer must: submit a certified request to the farmer’s financial institution.  The certified request must state the amount of the purchase price and the terms of the sale.  It must also include a confidentiality waiver signed by the farmer and a $15 fee.  The dealer must submit the certified request by certified mail, by registered certified mail, or by personally delivering it to the financial institution.

(2) Once the financial institution receives a certified request from a dealer, the financial institution must provide a memorandum to the dealer within four business days.  The memorandum must state whether the farmer has sufficient net worth or a sufficient line of credit to assure payment of the purchase price to the dealer.  If the financial institution states in the memorandum that the farmer has a sufficient net worth or line of credit to assure payment of the purchase price, the memorandum will constitute an irrevocable and unconditional letter of credit for the benefit of the dealer for a period of 30 days from the date on which the final payment is due.  If the financial institution does not state in the memorandum that the farmer has sufficient net worth or a sufficient line of credit, the financial institution must provide the dealer with all relevant financial history that the financial institution holds about the farmer.  Both the financial institution and the dealer must maintain the confidentiality of that information.

(3) Once the dealer receives the memorandum from a farmer’s financial institution and completes the sale of agricultural supplies to the farmer, the dealer must file a financing statement with the Iowa Secretary of State within 31 days after the date of purchase.
Unless the financial institution did not receive the certified request, including the farmer’s waiver, and/or the financial institution did not provide to the dealer the farmer’s complete and relevant financial history held by the financial institution, the dealer may have a lien of equal priority to that held by the financial institution.

If, however, the dealer provides the financial institution with a certified request and the financial institution responds that the farmer lacks sufficient net worth or a sufficient line of credit and provides a copy of the farmer’s financial history, then the financial institution’s interest will be superior to the dealer’s agricultural supply lien, if the dealer actually extends credit to the farmer even though the financial institution has responded that the farmer lacks sufficient net worth or a sufficient line of credit.  In addition, if the financial institution fails to receive the certified request or a confidentiality waiver signed by the farmer, the bank’s interest will be superior to the dealer’s lien.

There are several limitations on the agricultural supply lien that must be noted.  For example, the lien does not have priority over a conflicting and properly perfected landlord’s lien or harvester’s lien.  A lien in livestock feed has priority over an earlier-perfected lien, but only to the extent of the difference between the acquisition price of the livestock and the greater of the fair market value of the livestock at the time the lien attaches or the sale price of the livestock

One of the most practical benefits of this lien may be that the financial institution may decide to cooperate in getting the dealer paid for its products and services, if the financial institution believes that the dealer will utilize this statute if such cooperation is not given.  Such intention can be communicated orally and/or by submitting the certified request to the financial institution.
***
It is possible to combine in one form all of the required information and other provisions for both of the above liens so that the agricultural dealer will only need the farmer to sign once.

IT SHOULD BE NOTED THAT THE FOREGOING IS ONLY A BRIEF SUMMATION OF THE UNIFORM COMMERCIAL CODE SECURITY INTEREST ATTACHMENT AND PERFECTION PROCEDURE AND THE AGRICULTURAL SUPPLY LIEN STATUTE.  THE FOREGOING IS NOT A SUBSTITUTE FOR INDIVIDUAL LEGAL ADVICE WITH RESPECT TO ANY GIVEN SECURITY INTEREST, LIEN, OR TRANSACTION.  A PERSON WISHING TO TAKE ADVANTAGE OF THESE STATUTES SHOULD CONSULT AN ATTORNEY, EXPERIENCED IN THIS AREA, FOR ADVICE AND ASSISTANCE.

I understand AAI sells many products and forms that can help keep our company organized. Do you have a list of these products and forms?

A complete list of products and forms that AAI sells is located here. Please call the AAI office at 800/383-1682 if you have any questions about these items or if you would like to order.

Who is Self-Employed and who is an Independent Contractor?

If you are in business for yourself, carry on a trade or business as a sole proprietor or an independent contractor, you generally would consider yourself as a self-employed individual.

You are an independent contractor if the person for whom you perform services for has only the right to control or direct the result of your work, not what will be done, or how it will be done. For more information please go to: http://www.irs.ustreas.gov/businesses/small/article/0,,id=115045,00.html

What Are We To Tax?

Iowa Sales and Use Tax Ag-Chemical Dealers, Cooperatives, Elevators, Fertilizer Dealers For more information please go to: http://www.state.ia.us/tax/educate/78636.html

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What do I do with my annual Motor Vehicle Reports?

If you have Driver Qualification files for drivers operating a Commercial Motor Vehicle that you have to obtain a Motor Vehicle Report (MVR).

Did you know that in addition to obtaining the MVRs, you must annually review the driving record of each driver to determine whether that driver meets minimum safe driving requirements or is disqualified to drive a CMV? Review each drivers evidence of violations and accidents. Give great weight to violations, such as speeding, reckless driving, and operating while under the influence of alcohol or drugs, that indicates that the driver has exhibited a disregard for the safety of the public.

This “Annual Violation Review” must be formally documented and placed in the DQ file.

Annual Violation Review – you must keep 3 years of reviews on file. In the April 21, 2006 Regulatory Update it said, “Again, throw away the last year’s Annual Violation Review and file the new ones in each driver’s DQ file.”

A driver qualification file must be retained for as long as a driver is employed plus 3 additional years after. After 3 years from the date of execution, the following records can be removed from the driver’s file (meaning you have to keep 3 years worth of these records):
• Annual Violation Reviews
• MVR
• Annual list or certificate of traffic violations
• Medical examiner’s certificate
• Any letter granting a waiver of a physical disqualification

The remaining driver qualification file items must always remain in the file:
• Application for employment
• Previous employer inquiries
• Road test and certificate or copy of drivers license

There are some exemptions and exceptions to qualification issues and record keeping at both the federal and state levels.
Sources:
Subpart F — Files and Records, §391.51 General requirements for driver qualification files Iowa Department of Transportation, Iowa Truck Information Guide, page 49

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When do I need a Slow Moving Vehicle Sign?

Click here for the answer, or locate the SMV or no SMV pdf on our NH3 page. You must be logged in to view this.

What must I keep in my Driver Qualification File?

A driver qualification file must be retained for as long as a driver is employed plus 3 additional years after. After 3 years from the date of execution, the following records can be removed from the driver’s file (meaning you have to keep 3 years worth of these records):
• Annual Violation Reviews
• MVR
• Annual list or certificate of traffic violations
• Medical examiner’s certificate
• Any letter granting a waiver of a physical disqualification

The remaining driver qualification file items must always remain in the file:
• Application for employment
• Previous employer inquiries
• Road test and certificate or copy of drivers license

There are some exemptions and exceptions to qualification issues and record keeping at both the federal and state levels.
Sources:Subpart F — Files and Records, §391.51 General requirements for driver qualification files Iowa Department of Transportation, Iowa Truck Information Guide, page 49

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What are the requirements for Nurse Tank Markings and Safety Equipment?

Nurse Tank Markings and Safety Equipment
• Tank must be painted white or silver
• The words “ANHYDROUS AMMONIA” at least 2” tall on 4 sides
• The words ”INHALATION HAZARD” at least 2” tall on 2 sides
• Non-flammable gas placard, Division 2.2 on all 4 sides
• Identification Number “1005” on the placard on all 4 sides
• 5 gallons of clean water attached to the nurse tank
• Slow Moving Vehicle (SMV) sign on rear only of tank
Some states will have additional or slight variations of marking requirements.