OPMCA Connection
Keeping You Informed!

OPMCA Connection keeps you informed and current on regulations from all state and national agencies as well as laws pertaining to the petroleum marketing/c-store industry.

Candace McGinnis
Executive Director  

Hannah May
Director of Member Services  

6420 N. Santa Fe, Suite B
Oklahoma City, OK 73116
Phone: (405) 842-6625 
(800) 256-5013 
Fax: (405) 842-9562
  • Click Here to View all EMA Coronavirus Related Resources for Petroleum Marketers Including all Regulatory Reports

  • Click HERE to View the Latest Coronavirus Resources Provided NACS Relating to Convenience Stores as Essential Businesses
Thursday, Sept. 30, 2021
  • Wildfire Preparedness for Storage Tank Owners

  • FMCSA Expands Nationwide COVID-19 HOS Waiver to Fuel Marketers

  • FTC to Ramp Up Focus on Gas Station Acquisitions

  • Reminder: Free Commercial Routing App Available to Marketers

  • New Federal COVID-19 Program Places Additional Regulatory Burdens on Small Businesses

  • EPA Approves Software Patch to Bypass Faulty DEF Sensors That Shutdown Diesel Engines

  • Drug and Alcohol Clearinghouse Registration for Student Drivers

  • EMA Joins Other Associations in Request for Swift Release of the list of ENDS Nicotine Products with Marketing Denial Orders

  • EPA Set to Adopt Significant Cuts in Annual Ethanol Blending Mandates Under the RFS

  • IRS Reminds Businesses to Correctly Identify Workers as Employees or Independent Contractors

  • Federated Insurance to Host Risk Management Academy

  • Federated Insurance Complimentary Webinar

  • Federated Insurance September Educational Articles
Wildfire Preparedness for Storage Tank Owners
September is National Emergency Preparedness Month. It's important to get prepared for wildfires that could affect your facilities, as many underground storage tank sites also include aboveground storage tank systems. 

That's why we're sharing this guide the U.S. Environmental Protection Agency has created for tank owners. EPA’s Wildfire Guide: Preparation And Recovery For Underground And Aboveground Storage Tank Systems is now available on the federal agency's website. This resource will help you get prepared. It also has information about how to respond to catastrophic effects and environmental harm that might result from a partially or fully burned tank system or associated equipment. 

The EPA developed the wildfire guide in conjunction with a workgroup of experts who have a broad range of wildfire prevention and recovery knowledge. The guide represents the collective insight and thoughtful input of many people and resulted in this timely, information-filled guide to help those in the path of wildfires.

We encourage you all to take time to review this guide, ensure your staff are informed and your equipment is protected. 
FMCSA Expands Nationwide COVID-19 HOS Waiver to Fuel Marketers
At the beginning of September, the FMCSA extended the nationwide hours of service waiver (HOS) through November 30, 2021. Also, at the request of EMA, the FMCSA added petroleum products to the list of covered products deemed essential for COVID-19 emergency relief. This means that CDL drivers hauling certain petroleum products are now covered by the national HOS waiver. Specifically, the HOS waiver covers drivers hauling gasoline, diesel fuel, jet fuel and ethyl alcohol. EMA has also been working closely with the FMCSA to have drivers hauling heating oil, kerosene and propane added to the list of qualifying petroleum products subject to the HOS waiver. We expect to have an answer on those products very soon.

CLICK HERE to read the full EMA Compliance Bulletin.

FTC to Ramp Up Focus on Gas Station Acquisitions
As part of the Biden Administration’s efforts to stem the recent increase in retail gasoline prices, the Federal Trade Commission (FTC) has indicated an intent to increase its scrutiny of mergers and acquisitions in the petroleum industry. The FTC’s Chairperson, Lina Kahn, stated that the FTC is interested in determining whether large national chain retailers are engaging in “collusive practices” to “to restore” higher prices and that FTC staff will investigate any signs of this type of conduct. Part of this effort will be to determine whether large gas station acquisitions would substantially lessen competition for the retail sale of gasoline and diesel by putting too many stations in the hands of the same owners.

The Chairperson’s statements come in the wake of the FTC’s decisions to challenge several deals involving large acquisitions of gas stations and convenience stores, including 7-Eleven’s purchase of nearly 4,000 convenience stores from Marathon and Tri-Star Energy’s deal to purchase stores from Hollingsworth Oil Company. After reviewing these deals, the FTC required the acquiring company to sell some of the stations to lessen its concentration in certain geographic markets (usually terminal areas) where both the seller and acquiring company had a substantial presence. The Chairperson’s statements may signal closer scrutiny and tougher standards for approving mergers or acquisitions affecting concentrations gas stations and convenience stores nationwide.

The FTC is authorized to engage in a pre-approval review of such transactions where the purchase price is $92 million or more. This process involves a comparison of market concentrations before and after the merger or acquisition using the Herfendahl-Hirschman Index applied by the FTC’s Bureau of Competition. Where post-acquisition concentrations are considered too high, the FTC usually conditions its approval of the merger/acquisition on the divestment by the acquiring company of a portion of the assets to be purchased. The FTC may now have less tolerance for any increase in concentrations, which may delay the approval process or result in killing deals that would have been approved in other Administrations. Ultimately, this type of scrutiny could slow the consolidation in the industry which has been prevalent since the major oil company mergers that began in earnest in the late 1990s. 

Reminder: Free Commercial Routing App Available to Marketers
Last year, the Department of Homeland Security (DHS) Cybersecurity and Infrastructure Security Agency (CISA) and Idaho National Laboratory (INL) launched an exemplary new Commercial Routing Assistance (CRA) app, which DHS funded and INL developed in partnership with EMA through the All Hazards Consortium’s working group, and other industry and government operational professionals.

This free app incorporates vetted data to plot multiple automated or custom routing options while also providing state by state information on regulatory waivers, government closures, prohibitions, restrictions on movement and other orders that affect intrastate and interstate transportation during state and federal emergency declarations. EMA worked closely with CISA and its government partners on development of the app to give marketers, drivers and state association executives the ability to determine in real time, the full impact of emergency declarations on fuel marketers in the states and across the nation.

The App includes a one touch interactive map that allows planners, drivers, and decision-makers to develop strategies necessary to maintain efficient and uninterrupted marketing operations during the COVID-19 environment or other disasters or restrictions. CDL renewal extensions, state driver license agency closures, CDL driver medical renewal grace periods, rest stops and parking closures, and increased size and weight limitations are included for the entire driver route.

The Commercial Routing App (CRA) tool can be accessed at https://cra.inl.gov

New Federal COVID-19 Program Places Additional Regulatory Burdens on Small Businesses
President Biden announced a multi-pronged program to fight the spread of the COVID-19 delta variant. The program requires mask and testing requirements for certain public and private employers, mandatory paid time off for testing and vaccination, additional funding for the COVID Economic Injury Disaster Loan (EIDL) program and streamlining the Paycheck Protection Program (PPP) loan forgiveness for small loans. The detail of the program include:

  • Requiring All Employers with 100+ Employees to Ensure their Workers are Vaccinated or Tested Weekly:

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require workers who remain unvaccinated to produce weekly negative test result before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement which will impact over 80 million workers in private sector businesses with 100+ employees.

  • Requiring All Employers with 100+ Employees to Provide Paid Time Off for Covid Shots and Recovery:

The new OSHA rule will also require requiring employers to provide paid time off the time it takes employees to get vaccinated or to recover from vaccine side effects post- vaccination. This requirement will be implemented through the ETS.

  • New Support for Small Businesses Impacted by COVID-19:

The plan will also aid small businesses by strengthening the COVID Economic Injury Disaster Loan (EIDL) program, which provides long-term, low-cost loans. First, the Small Business Administration (SBA) will increase the maximum amount of funding a small business can borrow through EIDL from $500,000 to $2 million. The funds can be used to hire and retain employees, purchase inventory and equipment, and pay off higher-interest debt. Small businesses will not be required to start repaying these loans until two years after they receive the funding. Finally, SBA will offer a 30-day exclusive window of access where only small businesses seeking loans of $500,000 or less will receive awards after the new improved loan product launches.

  • Streamlining Paycheck Protection Program (PPP) loan forgiveness for small loans:

Through the PPP, the SBA has made more than 11 million loans to small businesses that can be forgiven and taken off their books if they use the funds to keep employees on payroll. The SBA will make it easier for more than 3.5 million PPP borrowers with loans of $150,000 or less to get their loans wiped clean. Under the new streamlined approach, SBA sends a pre-completed application form to the borrower who can review, sign, and send back to SBA, which then works with the lender to complete the forgiveness process. SBA expects more than 2.5 million additional small businesses to take advantage of this streamlined process.

EPA Approves Software Patch to Bypass Faulty DEF Sensors That Shutdown Diesel Engines
The EPA and California Air Resources Board (CARB) are working with diesel engine and vehicle manufacturers to address the growing number of reported diesel exhaust sensor failures that have left thousands of diesel engines temporarily inoperable. The sensor monitors the quality of diesel exhaust fluid (DEF) used in the engine. When the device senses too much nitrogen oxide in the exhaust system, the engine shuts down (derates to slightly above idle) to prevent violating federal air emission standards. The engine cannot be restarted until a new sensor is installed.

The problem is due to faulty sensors installed by manufacturers. However, the ongoing shortage of computer chips has made replacement sensors impossible to find. To get the stalled trucks rolling again, the EPA and CARB have approved a temporary software patch that will restart engines and keep them running until the industry can obtain the computer chips needed to produce replacement sensors. The software patch is available through vehicle and engine dealers.

Drug and Alcohol Clearinghouse Registration for Student Drivers
The Federal Motor Carrier Safety Administration (FMCSA) has updated the Drug and Alcohol Clearinghouse registration process to clarify how student drivers with a commercial driver’s license (CDL) or commercial learner’s permit (CLP) will register.

  • Student drivers who are employed by a motor carrier must register as a driver (download instructions).
  • Student drivers in a training program that is not affiliated with or operated by a motor carrier must register as a student driver (download instructions). This allows these individuals to designate a consortium/third-party administration (C/TPA), which is required to fulfill their drug and alcohol testing requirements

Employers of CDL holders are required to register in the Drug and Alcohol Clearinghouse, and to conduct queries on CDL holders they currently employ or are considering hiring. Employers who are not registered with the FMCSA Drug and Alcohol Clearinghouse may use the interactive Employer Registration Guide to register.

EMA Joins Other Associations in Request for Swift Release of the list of ENDS Nicotine Products with Marketing Denial Orders
On September 10, EMA joined FMI (the Food Industry Association), NACS, NATSO and SIGMA in a letter to Janet Woodcock, M.D. Acting Commissioner of Food and Drugs, U.S. Food & Drug Administration (FDA), and Mitchell Zeller, JD, Director of the Center for Tobacco Products (CTP), FDA, urging swift announcement of the list of electronic nicotine delivery system (ENDS) products for which the Agency has issued marketing denial orders (MDOs). Without the list, retail members, who make every effort to comply with the law, do not know which products must be removed from shelves.

Last August, our associations also sent a letter asking CTP to publish a list of products for which PMTAs had been submitted to know which products could legally be sold in stores during the FDA’s review process. In May, CTP published this list providing needed clarity for retailers, distributors and wholesalers. As the Agency takes action on PMTAs, it is imperative that there is continued transparency in the process and that stakeholders across the tobacco trade know all of the products that have had PMTAs rejected as well as all of the products that have had marketing orders granted.

Retail members who sell ENDS products take the responsibility of compliance and operating in accordance with the law seriously. Publicly available information noting the status of individual products is the only way retailers can ensure compliance.

The letter urged the FDA to, “Until such information is available, we respectfully ask CTP to focus enforcement on manufacturers who know the legal status of their own products and exercise enforcement discretion with respect to retailers selling ENDS products for which the status of their PMTAs has not been made publicly available.” 

EPA Set to Adopt Significant Cuts in Annual Ethanol Blending Mandates Under the RFS
According to Reuters news wire service, the Biden administration is set to move forward with significant cuts to the annual blending mandates under the RFS. If true, it would mark a significant victory for EMA and the energy marketers it represents. According to documents obtained by Reuters, the Environmental Protection Agency (EPA) will reduce blending mandates for 2020 and 2021 to about 17.1 billion gallons and 18.6 billion gallons, respectively. These levels would be lower than the 20.1 billion gallons that had been finalized for 2020 before the coronavirus pandemic. The agency is also expected to set the level for 2022 at about 20.8 billion gallons, the documents showed. The EPA is setting the 2020 and 2021 mandates retroactively. Ethanol would take the biggest hit. Levels for conventional renewable fuel, which includes ethanol, would drop from 15 billion gallons to about 12.5 billion gallons in 2020, 13.5 billion gallons in 2021 and 14.1 billion gallons in 2022.

This is good news for energy marketers for many reasons. First, lowering blending requirements below the E15 blend wall will allow marketers to choose whether to sell E15 rather than mandating its sale through adoption of blending obligations that do not reflect actual consumer demand. Second, it will relieve pressure on marketers to make costly E15 upgrades to their UST systems. Third, it will prevent the bankruptcy of state UST tank funds by avoiding a significant increase in claims for UST system leaks caused by E15. Finally, reducing the blending mandate below the blend wall will reduce the value of RINs, which have soared to record highs this year, and are used to discount prices at the pump that most marketers cannot compete with.

If adopted, the lower RFS blending mandates would be a major victory for EMA which has advocated consistently over the years before Congress and the EPA for reduced blending mandates. It appears that EPA is finally agreeing with what EMA has been saying all along; RFS blending obligations must be based on actual consumer demand for gasoline and not on wildly inaccurate statutory demand guestimates formulated back in 2005. Tying blending obligations to actual demand for gasoline prevents E15 from being forced onto the marketplace and preserves marketer choice over the blends they wish to sell.

The EPA is expected to release the blending obligations for 2020, 2021 and 2022 within the next few days. EMA will report further once the EPA makes the blending obligation announcement. 

IRS Reminds Businesses to Correctly Identify Workers as Employees or Independent Contractors
The Internal Revenue Service (IRS) issued a reminder to business owners of the importance of correctly determining whether individuals providing services are employees or independent contractors. According to IRS an employee is generally considered to be anyone who performs services, if the business can control what will be done and how it will be done. What matters is that the business has the right to control the details of how the worker’s services are performed. Independent contractors are normally people in an independent trade, business, or profession in which they offer their services to the public. Doctors, dentists, veterinarians, lawyers, accountants, contractors, subcontractors, public stenographers, or auctioneers are generally independent contractors.

Independent contractor vs. employee
Whether a worker is an independent contractor, or an employee depends on the relationship between the worker and the business. Generally, there are three categories to examine:
Behavioral Control - does the company control or have the right to control what the worker does and how the worker does the job?

Financial control
Does the business direct or control the financial and business aspects of the worker's job? Are the business aspects of the worker’s job controlled by the payer? (Things like how the worker is paid, are expenses reimbursed, who provides tools/supplies, etc.) Relationship of the Parties - are there written contracts or employee type benefits (i.e., pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

Misclassified worker
Misclassifying workers as independent contractors adversely affects employees because the employer’s share of taxes is not paid, and the employee’s share is not withheld. If a business misclassified an employee without a reasonable basis, it could be held liable for employment taxes for that worker. Generally, an employer must withhold and pay income taxes, Social Security and Medicare taxes, as well as unemployment taxes. Workers who believe they have been improperly classified as independent contractors can use IRS Form 8919, Uncollected Social Security and Medicare Tax on Wages (.pdf) to figure and report their share of uncollected Social Security and Medicare taxes due on their compensation.

Voluntary Classification Settlement Program
The Voluntary Classification Settlement Program (VCSP) is an optional program that provides taxpayers with an opportunity to reclassify their workers as employees for future tax periods for employment tax purposes with partial relief from federal employment taxes for eligible taxpayers that agree to prospectively treat their workers (or a class or group of workers) as employees. Taxpayers must meet certain eligibility requirements, apply by filing Form 8952, Application for Voluntary Classification Settlement Program, and enter into a closing agreement with the IRS.

Who is self-employed?
Generally, someone is self-employed if any of the following apply to them:
They carry on a trade or business as a sole proprietor or an independent contractor. They are a member of a partnership that carries on a trade or business. They are otherwise in business for themselves (including a part-time business). Self-employed individuals generally are required to file an annual tax return and pay estimated tax quarterly. They generally must pay self-employment tax (Social Security and Medicare tax) as well as income tax.

Federated Insurance to Host Risk Management Academy
November 8-10, 2021

Registration deadline: Monday, October 4, 2021
You are invited to attend an exclusive, complimentary Risk Management Academy session hosted by Federated Mutual Insurance Company. Click this video to help learn more about this session:
  1. Losses impacting your industry.
  2. Connect with industry peers facing similar challenges.
  3. Apply risk management best practices that make a difference at your business.

Attendance is limited so please register today! For more information on the event or the registration process, please feel free to contact Royetta Spurgeon at Federated Insurance by calling 507.455.5604 or e-mailing at drm@fedins.com.
Federated Insurance Complimentary Webinar
Federated Insurance September Educational Articles
Risk Management Corner
tackles subjects related to workplace safety

HR Question of the Month
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It’s Your Life
discusses concepts related to life and disability income insurance
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