The Center for Disease Control and Prevention (CDC) issued on February 25, 2022 updated guidance related to face coverings based on the latest data on COVID-19, and on February 28, 2022 California Department of Public Health (CDPH) has issued updated guidance on face coverings to align with the most current CDC guidance.  Effective March 1, 2022 CDPH face coverings guidance no longer requires individuals to wear face coverings indoors, except in limited settings where face coverings remain required, and now strongly recommends that all individuals, regardless of vaccination status, continue indoor masking.  In addition, Governor Newsom issued an Executive Order with respect to the second readoption of the Cal/OSHA Emergency Temporary Standard (ETS) by extending it an additional 21 days to allow the Occupational Safety and Health Standards Board (OSHSB) additional time to finalize the third readoption of the ETS to align with current public health guidelines and recommendations. This is what we know for now and we will continue to review and monitor the COVID guidance from CDPH as well as the Cal/OSHA ETS.

An Advanced Notice of Proposed Rulemaking was recently approved by the Federal Maritime Commission asking if a new rule governing demurrage and detention billing practices would benefit the trade and should apply to marine terminal operators and non-vessel operating common carriers in addition to vessel-operating common carriers.  Specifically, the Commission is considering the merits of establishing regulations mandating certain minimum information be included in bills issued for demurrage and detention charges and prescribing the maximum period in which an invoice can be sent.  Additionally, the Commission is seeking industry views on whether it should regulate the demurrage and detention billing practices of common carriers and marine terminal operators. The ANPRM broadly defines the terms “demurrage and detention” to include any charges assessed by common carriers and marine terminal operators related to the use of marine terminal space or shipping containers, regardless of the labels given to those charges.  The ANPRM is being issued in response to information developed by Commissioner Rebecca F. Dye as part of her work leading Fact Finding 29. In July 2021, she identified issuing an ANPRM on these topics as one of the Interim Recommendations provided to the Commission on how the agency can address complaints and issues related to demurrage and detention.  The Commission is requesting comments on what specific information should be required on demurrage and detention bills. It is interested in learning what information is necessary to identify a shipment, and whether bills for demurrage and detention should include information on how the charges are calculated and what circumstances justify stopping the clock on charges. Finally, the Commission is soliciting guidance on how to ensure a bill is being issued to the correct party and whether an explanation of the source and reason for the charge should be required.  If you have comments or suggestions, please forward them to the Association.

This week, the U.S. Federal Environmental Protection Agency (EPA) has published the final rule approval for the 1997 24-hour PM_2.5 standards as established under the Clean Air Act.  With this rule approval designation, U.S. EPA also found that the San Joaquin Valley is in attainment with the 1997 24-hour standard.  The standard requires that PM_2.5 readings maintain below 65 micrograms/m³ in a 24-hour span.  The 1997 standard is one of four major standards under the National Ambient Air Quality Standards (NAAQS) that the Air District must be in attainment with, or be implementing rules to help achieve attainment by specific dates.  The Air District originally failed to meet the December 2015 deadline for attainment designation as previously established, and was forced to develop more stringent rules in order to achieve the secondary attainment deadline of December of 2020.  Several Air District rules targeting agriculture were developed as a result of this standard, and the standard’s reassessment.  With help from the Association, and many other agricultural associations, rules against the industry were limited to only the ones that could achieve the most emissions reductions.  This is a significant achievement for the local Air District, and also further highlights the reductions achieved by voluntary and incentive based agricultural programs in the Valley.

The U.S. Environmental Protection Agency (EPA) is taking action to further the Agency’s compliance with the Endangered Species Act (ESA) when evaluating and registering new pesticide active ingredients (AIs).  Before EPA registers any new conventional AI, the Agency will evaluate the potential effects of the AI on federally threatened or endangered (listed) species, and their designated critical habitats, and initiate ESA consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the Services).  Prior to this action, there was a litany of resource-intensive litigation against EPA for registering new AIs prior to assessing potential effects on listed species. EPA’s new policy should reduce these types of cases against the Agency and improve the legal defensibility of new AIs, which often have lower human health and ecological risks than older pesticides.  Under this new approach, if EPA finds through its analyses that a new conventional pesticide AI is likely to adversely affect listed species or their designated critical habitats, EPA will initiate formal consultation with the Services before granting a new AI registration. As part of its analysis and under its existing authorities, EPA will consider the likelihood that the registration action may jeopardize the continued existence of listed species or adversely modify their designated critical habitat and provide its findings to the Services. To determine or predict the potential effects of a pesticide on these species and habitats, EPA will use appropriate ecological assessment principles and apply what it has learned from past effects determinations and the Services’ biological opinions.  If EPA determines that jeopardy or adverse modification is likely, the Agency will only make a registration decision on the new AI after requiring registrants to implement mitigation measures that EPA determines would likely prevent jeopardy or adverse modification. If EPA finds that a new AI is likely to adversely affect listed species or their critical habitat, but that jeopardy/adverse modification is not likely, it may nonetheless require registrants to include mitigation measures on their registration and product labeling to minimize the effects of incidental take to listed species that could result from use of a pesticide.

Beginning this month, the California Department of Tax and Fee Administration made changes to their 2022 hazardous waste environmental fee rates.  In doing so, they helped small operations with less than 100 employees, but severely penalized those with 500 or more employees.  Currently, organizations operating in California with 50 or more employees who are each employed more than 500 hours in California during the prior calendar year, must file and pay the environmental fee.  Starting January 1, 2022, the employee threshold will increase from 50 employees to 100 employees.  The new rates will be paid beginning with the company’s 2022 filing due on February 28, 2023.  For this year’s filing, due February 28, 2022, the rates remain in place.  Here is the new schedule as compared to the current schedule:

According to the State, the fee is collected on behalf of the Department of Toxic Substances Control and supports protection of California’s communities and the environment.  The fees are accessed to almost organizations, because they use, generate, store, or conduct activities in the state related to hazardous materials (activities related to hazardous materials include the use of products such as paper, ink, plastics, paint, etc., which were manufactured using hazardous materials).

The Biden Administration recently appointed Blong Xiong as the new State Executive Director (SED) for the USDA California Farm Service Agency (FSA). Prior to his appointment, as the Executive Director for Asian Business Institute & Resource Center (ABIRC), and with over 20 years of community service, Xiong works with the Board to carry out the vision and mission of ABIRC to serve the small Southeast Asian farmers and small Asian businesses in the Central Valley. Prior to being the Executive Director for ABIRC, Xiong served two terms as a Council Member for the City of Fresno from 2007-2014, where he was the first elected Hmong Council Member in the State of California and the first Asian Council Member in the City.  He has also served as Deputy Director for The Fresno Center, a nonprofit organization that assists immigrants, refugees, and New Americans. Xiong holds a Bachelor of Science degree in Business Administration from Marian College of Fond du Lac and a master’s degree in Business Administration from National University.   As SED, Xiong will be responsible for overseeing the delivery of FSA programs to agricultural producers in California.  These commodity, conservation, credit, and disaster assistance programs ensure a safe, affordable, abundant, and nutritious food, fiber, and fuel supply for consumers.

The Cal/OSHA Consultation is offering free webinars on the revisions to the COVID-19 Emergency Temporary Standard (ETS).  These revisions we updated again and became effective on January 14, 2022.  The free 2-hour webinar will cover the changes to the ETS and provide resources.

Click on the link below to the webinar for registration or visit https://www.dir.ca.gov/dosh/coronavirus/webinars.html

The Centers for Disease Control and Prevention issued new guidance for Quarantine and Isolation periods in response to the ongoing Omicron cases.  This new guidance from CDC reduces the time after contracting or exposure to COVID-19.  The California Department of Public Health (CDPH) has just released their updated guidance to conform with CDC, with additional requirements. Listed are the current guidance for quarantine and isolation:

• Isolation period of infected employee after a positive COVID-19 test regardless of vaccination status, natural immunity or lack of symptoms
  • stay home for five days
  • isolation can end if no symptoms or symptoms improve after five days, and a diagnostic test on day 5 tests negative
  • if unable to test or choose not to test and symptoms are not present or resolving, isolation can end after day 10
  • continue to wear mask around others for a total of 10 days
• Quarantine period after exposure (close contact) to someone with COVID-19, this will depend on vaccination status
  • unvaccinated employees, have not received booster, or second dose of Moderna/Pfizer more than 6 months ago or single dose of Johnson & Johnson more than 2 months ago
    • stay home for five days
    • test for COVID-19 on day 5
    • quarantine can end after day 5 if symptoms are not present and diagnostic test on day 5 is negative
    • if unable to test or choosing not to test and symptoms are not present, quarantine can end after day 10
    • continue to wear mask around others for a total of 10 days
  • vaccinated employees who have received a booster after a two dose of Moderna/Pfizer more than 6 months ago or single dose of Johnson & Johnson more than 2 months ago
    • wear mask around others for 10 days
    • get a COVID-19 test on day five
    • if symptoms develop, get a test and stay home
• The definition of boosted or vaccinated but not yet *booster eligible
  • the individual does not need to quarantine
  • test on day 5
  • wear mask around others for 10 days

*Booster eligible definition from CDPH specifies Moderna or Pfizer-BioNTech is six months after second dose; Johnson & Johnson is two months after first dose 

Reminder, under the Cal/OSHA Emergency Temporary Standard (ETS) beginning January 14 requires employees to wear face covering and maintain six feet social distance if they are not excluded or return to work.  Currently under the ETS, an asymptomatic fully-vaccinated employees does not need to quarantine as long as they wear a face mask and social distance for given period, however, CDPH now makes a new distinction between boosted and un-boosted.  If an employee is vaccinated and booster eligible but hasn’t received the booster dose, they must stay home for 5 days.

The Association continues to monitor CDPH, Cal/OSHA, CDC and local health departments guidance and will update members on this already complicated situation.

This past week, the San Joaquin Valley Air Pollution Control District held a workshop on potential amendments to Rule 4550 – Conservation Management Practices (CMPs).  The potential changes stem from a commitment in their 2018 PM2.5 State Implementation Plan (SIP) to further evaluate ways to promote conservation tillage practices and other potential enhancements to their CMP Program to reduce dust from ag operations.  Specifically, the District is considering more widespread adoption of conservation tillage, and possible control measures on land that is fallowed and then worked up.  Association President/CEO Roger Isom testified at the workshop encouraging the district to take their time before any control measures are proposed.  Isom stated that any potential measures must be based on actual scientific data obtained through actual scientific measurements, as was the case with most of current adopted CMPs.  Isom also commented that the potential measures must have an actual impact on reducing PM2.5 during the critical times of the year.  This rule development process for these changes is just beginning and the Association will be involved throughout the process.

The California Occupational Standards Board met yesterday and renewed the COVID-19 ETS with some minor revisions.  Once approved by the California Office of Administrative Law, this readoption will remain in effect for 90-days, from January 14, 2022 through April 14, 2022.  Some of the revisions:

• face covering to now include a light test for fabrics that do not let light pass through,
• require vaccinated employees to test who have had close contact in the workplace,
• provide testing at no cost, during paid time, to all employees in the workplace who had close contact and provide them with information on benefits
• employees exempt from wearing face coverings due to medical condition, mental health condition or disability requires social distancing (6 feet apart) from all other employees and either fully vaccinate or test weekly,
• return to work requirements – employees may return under the following conditions:
  • employees who had a close contact but never developed any COVID-19 symptoms may return to work after 14 days have passed since last known close contact unless either applies:
    • 10 days have passed since the last known close contact and the employee wears a face covering and maintains 6 feet distance from others while at the workplace for 14 days following the last date of close contact.
    • 7 days have passed since the last known close contact; the employee tested negative for COVID-19 using a COVID-19 test with the specimen taken at least five days after the last known close contact; and the employee wears a face covering and maintains six feet of distance from others while at the workplace for 14 days following the last date of close contact.
  • employees who had a close contact and developed any COVID-19 symptoms cannot return to work until:
    • at least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever-reducing medications; and
    • COVID-19 symptoms have improved; and
    • at least 10 days have passed since COVID-19 symptoms first appeared.
• changes to post-care testing that would now include vaccinated employees.

Employer groups asked for further explanation or reconsider the new face covering requirements as most face coverings will not meet the light test requirements. The provisions to the post-care test to vaccinated employees with no symptoms will be difficult for employers to find tests due to the surge of COVID-19 variants, increase of COVID-19 cases during the holiday season and will disincentivize employees to vaccinate.  The reinstitution on requirements for social distancing in the workplace will also be difficult for employers as they will need to modify work areas again. Cal/OSHA released the draft proposed COVID-19 ETS 5 days ago and the Association continues to review and monitor the ETS. The Association is also working on updating its COVID-19 Prevention Plan for members