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 Fite
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
2019-2020 Board of Directors

Jerry Davidson, Chairman  
 Pete's Corporation

Tommy Shreffler
OnCue Marketing, LLC

Teresa Hollenbeck
Red Rock Distributing Company

Kurtis Hutchinson
Hutchinson Oil Company

Jason Flinn
Flowers Oil Company

Rob Toth
Coffeyville Resource
Friday, August 30, 2019
  • Fall Outing Tentative Schedule of Events

  • FMCSA Driver Hours of Service Proposal Is a Big Win for Petroleum Marketers

  • FDA Reaffirms Commitment to Help Retailers Achieve Menu Labeling Compliance

  • FMCSA to Add No-Fault Crash Category to Motor Carrier Safety Rating Scores

  • How to Avoid Costly Fines Transporting Skid Tanks 

  • Federated Insurance August Educational Articles
Fall Outing Tentative Schedule of Events
MONDAY, SEPT. 9, 2019

10:30 AM - Check In at Shangri-La Clubhouse   
  • Buffet Luncheon for all Attendees begins  

12:00 PM - Shotgun start at Shangri-La Golf Course   
  • Sponsored Beverage Carts on Course  
  • Prizes Awarded at end of Tournament

1:00 PM - Yacht Charter on Grand Lake O’ The Cherokees   
  • 2 hour cruise  
  • Beverage Service and Appetizers Provided

6:30 PM - Luau Reception and Dinner    
Be sure to wear your favorite Hawaiian shirt for our Luau themed dinner! 
  • Reception before Dinner
  • Dinner and Door Prizes
  • After Dinner Cocktails on Patio until 9:30 PM

TUESDAY, SEPT. 10, 2019

7:00 AM - Breakfast  
  • Breakfast buffet for all OPMCA guests

8:00 AM - Shotgun Start—Golf at your leisure   
  • New Round of 18 Holes
  • Sponsored Beverage Cart on Course

10:00 AM - Boxed lunches                      
  • To-go lunches available for all guests!
FMCSA Driver Hours of Service Proposal Is a Big Win for Petroleum Marketers
Earlier in August, the Federal Motor Carrier Safety Administration (FMCSA) published a long-awaited proposed rulemaking to streamline a number of hours of service (HOS) regulations important to petroleum marketers. In doing so, the FMCSA handed petroleum marketers a significant victory by proposing key HOS changes requested by PMAA. The most important of the changes included in the FMCSA’s Notice of Proposed Rulemaking (NPRM) would lengthen the maximum distance limit and increase on-duty time a CDL driver may travel each day while maintaining their short haul status and exception from recording daily HOS. PMAA made this an important issue during its DC Conference and “Day on the Hill” by working with Rep. Rick Crawford’s (R-AR) office in sending a letter to the FMCSA. Click here to read the letter.

Under the NPRM, the distance a driver could travel under the short haul exception would lengthen from 100 air-mile radius to 150 miles. In addition, the maximum daily on-duty status for short haul drivers would increase from 12 hours to 14 hours. PMAA requested these changes to expand the number of CDL HAZMAT drivers who qualify for short haul status, increase the availability of short haul drivers for longer shifts and provide marketers more driver scheduling flexibility. The changes would also eliminate the electronic HOS recording requirement for drivers who currently drive beyond a 100 air-miles radius but remain within 150 air-miles from their work reporting location at the start of their daily shift.

PMAA initially asked the FMCSA to make the changes to the short haul driver exception in 2017 as part of the Administration’s regulatory streamlining initiative. The FMCSA was receptive to PMAA’s request. PMAA then successfully worked with the office of Rep. Rick Crawford (R-AR) to send a letter supporting PMAA’s request to the FMCSA. 

The ANPRM also proposes additional changes to the HOS supported by PMAA including:

  • Extend the 14-hour maximum on duty time for up to three consecutive hours to allow a single off-duty time break ranging from 30 minutes to no more than 3 consecutive hours provided the driver has at least 10 consecutive hours off duty before the start of his or her next duty period. This means wait times at terminals for up to three hours would not count towards the 14- hour maximum on duty time provided the driver goes off-duty.

  • Modify the adverse driving conditions exception that currently allows up to 13 hours of driving time to also extend the maximum daily on-duty time from 14 to 16 hours.

  • FMCSA’s proposed rule on hours of service regulations would provide $274 million in savings for the U.S. economy and have no negative impact on safety. The public comment period is open for 45 days. PMAA will file comments supporting the changes in the proposed rule to ensure they become final regulations.

The FMCSA’s NPRM may be viewed here.

FDA Reaffirms Commitment to Help Retailers Achieve Menu Labeling Compliance
A couple of weeks ago the FDA announced their commitment to work with chain restaurants and similar retail food establishments to achieve menu labeling compliance which became effective on May 7, 2018. The goal of the menu labeling requirements is to provide consumers with consistent nutrition information for standard menu items (including food on display and self-service foods) in chain restaurants or similar retail food establishments. 

To do so, “in a flexible way,” FDA will:

  • Provide continued support for industry stakeholders by responding to requests for training and to email inquiries (calorielabeling@fda.hhs.gov). Stakeholder questions and input have helped FDA tailor resources for industry, specifically the development of fact sheets and the Menu Labeling Training Module. 

  • Assess industry implementation of the primary components of the menu labeling requirements: 
  1. Posting calorie information on menus and menu boards for all standard menu items;
  2. Disclosing calorie information on signs adjacent to foods on display and selfservice foods that are standard menu items;
  3. Including the succinct statement concerning suggested daily caloric intake and statement of availability for written nutrition information on menus and menu boards; and
  4. Having required written nutrition information available on the premises of the chain restaurant or similar retail food establishment upon request.

FDA will explore partnering with trade associations and consumer groups in assessment and outreach efforts. FDA will also identify issues from consumer complaints to its’ menu labeling complaints mailbox at menuandvendingcomplaints@fda.hhs.gov in order to guide outreach efforts.

  • Continue to be a resource on menu labeling for state, local, tribal, and territorial (SLTT) regulatory partners to ensure consistent implementation. Some states and localities have already adopted menu labeling regulations identical to FDA's. FDA plans to engage with retail stakeholder groups, like the Conference for Food Protection, to explore a potential forum for discussing implementation, sharing information, and developing common approaches to key implementation problems. The forum would benefit SLTT regulatory partners who are interested in including menu labeling within their retail food protection programs. Further, FDA is working to develop a model ordinance form for states and localities that may find such a tool useful in adopting menu labeling requirements identical to FDA's.

For the first year of implementation, FDA focused on education and outreach to help establishments understand the new menu labeling regulations. FDA developed and posted on the FDA website the following resources and educational tools:

  • Fact Sheets - Quick reference sheets focusing on general requirements and calorie declaration requirements
  1. Menu Labeling Rule Key Facts for Industry (General Information)
  2. Menu Labeling Rule Key Facts for Industry (Declaring Calories) 

  • Mailbox for general menu labeling questions at calorielabeling@fda.hhs.gov

FMCSA to Add No-Fault Crash Category to Motor Carrier Safety Rating Scores
The U.S. DOT’s Federal Motor Carrier Safety Administration (FMCSA) is taking action to change the way no-fault accidents are recorded in its carrier safety rating program. The new regulatory action is important to petroleum marketers because it will remove a significant factor that removes a key data point that can lower safety scores under the Compliance, Safety Accountability (CSA scores). Low safety scores can lead to loss of operating authority. The CSA program, which monitors and records carrier safety data, replaced the former and less obtuse motor carrier safety rating system about 10 years ago. The single biggest complaint against the CSA program since its inception is the failure to take into account fault when scoring commercial motor vehicle crashes. No-fault crashes are counted against motor carriers regardless of whether the carrier was to blame. This has led to artificially low CSA scores which can affect everything from operating authority, enhanced safety monitoring, legal defenses to insurance rates. The FMCSA said it will make permanent the current no-fault data demonstration project that allows truck crashes in which the driver was not at fault to be listed as “not preventable” in CSA program scores. The FMCSA first launched the Crash Preventability Demonstration Project in 2017 as a two-year demonstration project. 

The program currently classifies a crash as “not preventable” on a CSA profile when the carrier is not at fault. However, before that determination can be made, a carrier must submit a request for data review through the agency’s DataQs system, attaching documentation that establishes no fault. Currently there are eight crash categories that can be challenged under the new program. Prior to no fault designation on CSA scores, fatal crashes listed on a carrier’s safety profile did not contain information on whether the carrier was at fault in the crash. Under the new program, if a crash is found to be not preventable, a carrier’s private Crash Indicator Behavioral Analysis Safety Improvement Category, or BASIC, score would be recalculated with the crash omitted. BASIC scores underpin carrier ratings in the CSA program. The FMCSA said that the new no-fault program can be implemented without a formal rulemaking.

How to Avoid Costly Fines Transporting Skid Tanks 
Increasingly, federal and state enforcement authorities are handing out costly citations to petroleum marketers for improperly transporting portable skid tanks to and from construction sites, farms and other commercial user locations. Typically, skids are transported empty on a flatbed truck and then filled with product after delivery to the end user. When the end user is finished with the skid tank, it is shipped back to the marketer’s tank yard in the same manner it was delivered. Since skid tanks at this point may only contain a small amount of fuel mixed with residue that is unsuitable for use in motor vehicles or other equipment, many marketers consider them “empty” for purposes of complying with federal Hazardous Materials Regulations (HMR). Unfortunately, “empty’ can be a relative term. Skid tanks deemed empty by marketers are often treated as containing hazardous materials by roadside inspectors. This difference of opinion over what constitutes “empty” is likely to result in marketers being cited for failure to comply with the HMR accompanied by a hefty fine and probable out of service order. 

While a marketer may deem a skid tank empty of usable product the fuel/residue mixture is still classified as a hazardous material under the HMR and must be properly placarded, accompanied by a shipping paper and transported by a CDL driver with a HAZMAT endorsement. This is true regardless of the amount of residue left in the tank. There are no limited quantity exceptions for product remaining in skid tanks. Any amount of hazardous material transported in a skid tank is sufficient to trigger compliance with the HMR. Only when the skid tank is cleaned and purged of vapors is it considered truly “empty” under section 49 CFR 173.29 of the HMR and no longer subject to federal regulation.

The costs for assuming a skid tank is empty when it is not are high, particularly when transporting multiple tanks on the same truck. Under the HMR, a person who violates a requirement applicable to the transportation of hazardous materials is liable for a civil penalty of not more than $55,000 and not less than $250 for each violation. The maximum civil penalty is $110,000 if the violation results in death, serious illness or severe injury to any person or substantial destruction of property, and a minimum $495 civil penalty applies to a violation relating to HAZMAT training. When the violation is a continuing one, each day of the violation constitutes a separate offense.  

Avoiding Citations and Out of Service Orders

Marketers can avoid unnecessary and costly citations by ensuring that the following DOT requirements are met when transporting skid tanks that have not been cleaned and purged of product: 

  • Placards - Skid tanks must be placarded unless they have been cleaned of all residue and purged of vapors (49 CFR 172.29). Skid tanks must be placarded on all four sides when being transported (49 CFR 172.504). There is an exception to this rule when the gross aggregate capacity of the tank(s) is less than 1000 gallons - then only two sides need be placarded (49 CFR 172.514(c). 
  • Shipping Papers – Skid tanks containing only residue must still be accompanied by shipping papers that comply with U.S. DOT HAZMAT regulations. Use the same format on skid tank shipping papers as used with fuel being transported by cargo tank truck or transport. The quantity on the shipping paper – usually designated in gallons or by truckload should be noted as “residue”. Residue is the substance left in a tank that is not suitable for powering any engine or equipment due to its impurities. Any amount remaining in the tank above a residue must be designated in gallons. 
  • Driver Qualifications – Only a driver with a current CDL and HAZMAT endorsement may transport skid tanks containing fuel or residue.

The Bottom Line - if a skid tank has not been cleaned and purged, then it must be transported as if it were full and subject to all applicable federal hazardous materials transportation regulations. A good rule of thumb is to always treat skid tanks as containing product when transporting between customer and tank yard.

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