• PMAA Weekly Review

  • PMAA Weekly Review

    February 28, 2020 [WR-20-09]
    Sponsored by Phillips 66
    who generously supports PMAA’s work in our Nation’s Capital.

    Quick Links to Articles for February 28, 2020

    USDA Announces $100 Million Grant Program for E15 Infrastructure Upgrades
    Reminder: Annual EPCRA Tier II Reports Due March 1st
    House Passes Legislation Banning Flavored Tobacco Sales
    NLRB Issues Final Joint Employer Rule
    Brady Says No Gas Tax Anytime Soon
    Far Fewer Small Refinery Exemptions for 2020
    CDC Recommendations for Businesses Regarding Coronavirus
    WOTUS 2.0 Challenged by Environmental Groups
    Donations Needed for the D.C. 2020 Silent Auction!
    PMAA Member Services Spotlight Featuring: National Purchasing Partners (NPP)
    Have You Considered Marketing Your Product or Service in PMAA Online Buyers' Guide in 2020?
    Make Your Hotel Reservations and Register Now for PMAA’s Washington Conference and Day on the Hill
    PMAA Platinum Partner Spotlight Featuring: Meridian Associates, Inc.
    Articles for February 28, 2020
    USDA Announces $100 Million Grant Program for E15 Infrastructure Upgrades
    The United States Department of Agriculture (USDA) announced it will publish a Notice of Funding Availability (NOFA) of up to $100 million in competitive infrastructure grants to promote the distribution of higher ethanol and biodiesel blends. The grant money will be made through the Higher Blends Infrastructure Incentive Program (HBIIP) and is available to assist retail fueling and biodiesel facilities with converting equipment to handle higher biofuel blends such as E15 and B20. Eligible entities for HBIP grants include: retail fueling stations, convenience stores, hypermarket fueling stations, fleet facilities, etc. Consideration for eligibility will also be given to biodiesel terminal operations and home heating oil distribution networks. Grants for retail gasoline stations will be made available for the installation of fuel pumps, related underground storage tank system equipment and other infrastructure.

    PMAA submitted written comments to the USDA requesting priority for applicants converting retail infrastructure to E15 compatible equipment. PMAA requested that funding not be limited to dispensers alone, but available for all UST system equipment. The USDA will launch the program in the early spring and will provide information on the application process and evaluation criteria in an upcoming notice. PMAA will report on these requirements as they are made available.
    Reminder: Annual EPCRA Tier II Reports Due March 1st

    PMAA Compliance Bulletin
    EPA EPCRA Tier 2 reports must be filed for by March 1, 2020 for the 2019 reporting year. Facilities that store over 10,000 pounds of hazardous chemicals onsite at any point during the previous calendar year must file an EPCRA tier II report. This means any amount of petroleum product stored on site, in bulk plants (above ground and underground), marinas, wholesale fleet fueling facilities, skid tanks and heating oil tanks used to heat facility buildings must be counted towards the 10,000-pound reporting threshold. Also, retail gasoline facilities with 75,000 gallons or less of gasoline storage capacity and 100,000 gallons or less of diesel fuel storage capacity are exempt from EPCRA reporting requirements. Retail gasoline facilities with storage capacities greater than the 75,000/100,000-gallon reporting threshold do not qualify for this exemption. Instead, these facilities must apply the 10,000-pound threshold to determine whether an EPCRA Tier II report must be filed. To review the entire bulletin, click here.
    House Passes Legislation Banning Flavored Tobacco Sales
    Senate Not Likely to Vote on the Bill
    Today, the House passed H.R. 2339, the “Reversing the Youth Tobacco Epidemic Act of 2019,” by a vote of 213-195. 17 Democrats voted against the bill and 5 Republicans voted for the bill. The legislation, which is sponsored by House Energy and Commerce Committee Chairman Frank Pallone (D-NJ) and Rep. Donna Shalala (D-FL), would wipe out a wide range of popular flavored tobacco products from convenience store shelves which could hurt businesses and threaten the larger economy.

    Specifically, the bill:
    • Prohibits flavored tobacco products (includes menthol cigarettes, flavored cigars, and flavored chewing tobacco).
    • Increases user fees (FDA will have the authority to collect user fees from all tobacco products, including e-cigarettes. It also increases the total amount of user fees collected each year by $100 million).
    • Bans all non-face-to-face sales of all tobacco products including delivery sales; and
    • Makes it unlawful to market, advertise or promote any e-cigarette product to individuals under the age of 21. This includes requiring manufacturers of all tobacco products, including e-cigarettes, to be held to the same advertising and sales requirements currently applied to the sale, distribution, and use of traditional cigarettes.
    Although the House passed the bill, Senate Majority Leader Mitch McConnell (R-KY) is not likely to bring the bill up for a vote in the Senate. PMAA opposes the bill because it is adult prohibition. As with alcohol and marijuana, banning products to dictate adult behavior doesn't work. Instead, it drives consumers to the illegal market, which hurts small businesses.
    NLRB Issues Final Joint Employer Rule
    States Sue DOL Over Its Recent Joint Employer Final Rule
    The National Labor Relations Board (NLRB) released a final rule that determines if companies are classified as joint employers under the law. Under the final rule, a company is considered a joint employer of another company's employees only if the two share or co-control the employees’ “essential terms and conditions of employment, which are exclusively defined as wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.” In a statement, NLRB Chairman John Ring said that the final rule “gives our joint-employer standard the clarity, stability, and predictability that is essential to any successful labor-management relationship and vital to our national economy.” The final rule is set to take effect on April 27, 2020.

    The announcement comes one month after the Department of Labor (DOL) issued a similar rule to revise and update its regulations interpreting joint employer status under the Fair Labor Standards Act (FLSA). The DOL final rule provides updated guidance for determining joint employer status when an employee performs work for his or her employer that simultaneously benefits another individual or entity, including guidance on factors that are not relevant when determining joint employer status. The effective date of the rule is March 16, 2020.

    As expected, DOL's rule established a "high bar" for joint-employment under the FLSA, which is supported by PMAA and is an important shift away from Obama-era policy.

    The final rule:
    • Specifies that when an employee performs work for the employer that simultaneously benefits another person, that person will be considered a joint employer when that person is acting directly or indirectly in the interest of the employer in relation to the employee;
    • Provides a four-factor test to determine when a person is acting directly or indirectly in the interest of an employer in relation to the employee, by weighing whether the business, with regard to its franchisee or contractor, maintains the power to hire and fire; to supervise schedules and “conditions of employment;” to set pay; and to keep employment records; and
    • Clarifies that an employee’s “economic dependence” on a potential joint employer does not determine whether it is a joint employer under the FLSA; and specifies that an employer’s franchisor, brand and supply, or similar business model and certain contractual agreements or business practices do not make joint employer status under the FLSA more or less likely.
    The final rule also provides several examples applying the Department’s guidance for determining FLSA joint employer status in a variety of different factual situations. Click here for more information.

    However, this week, seventeen states and the District of Columbia filed a lawsuit to overturn the joint employer final rule issued by the DOL. In the complaint, the state attorneys general argued that the final rule is “arbitrary and capricious.”
    Brady Says No Gas Tax Anytime Soon
    Speaking to Politico yesterday, Rep. Kevin Brady (R-TX) said that he doesn’t believe there is a much of an appetite among Republicans to index the federal gas tax, saying, “We have just not had a groundswell of support at all, or even really any major change.” Brady did say, however, that he was surprised to hear that some Senate Republicans have expressed interest in a funding package that would index the gas tax.

    Although there may not be interest among much of the GOP to adjust the gas tax, there are some Republicans who are open to supporting the idea. Rep. Rodney Davis (R-IL), who is the top Republican on the House Transportation and Infrastructure Subcommittee on Highways and Transit, expressed his support this week for a package that would index the gas tax, in addition to requiring a road use fee for electric vehicles (EVs) and an eventual vehicle miles traveled (VMT) fee. Additionally, House Transportation and Infrastructure Committee Ranking Member Sam Graves (R-MO) is also open to the idea of increasing the gas tax, but only if it is “revenue neutral.” However, Graves said that the most important things to focus on now are fees for EVs and other alternative fuel vehicles.
    Far Fewer Small Refinery Exemptions for 2020
    Republican Senators Urge Trump to Fight Court Ruling
    As PMAA reported last week, the EPA has been seeking guidance from the White House on the future of the biofuel waivers program that issues small refinery exemptions (SREs) from the RFS. According to the reports, for 2020 ethanol blending requirements, EPA will issue far fewer RFS exemptions for small refineries looking to reduce their 2020 obligations. Specifically, EPA is expected to reject 23 petitions for exemptions.

    This issue is important to petroleum marketers because high RIN prices leads to an unlevel playing field in the motor fuels market. Following the reports that the Administration would reduce the number of exemptions, RIN prices had increased 24 cents according to OPIS.

    The move comes in response to a January court decision in which a U.S. appeals court ruled that the EPA had exceeded its authority and must reconsider the SREs that it had granted to three different oil refineries. That court said only refineries that had exemptions continuously since 2011 could apply for new ones.

    Biofuel groups have grown increasingly irritated over the EPA’s granting of SREs. Many have argued that the numerous refinery waivers from the past few years have indirectly reduced the ethanol mandate which have driven down RIN values and, therefore, weakened the market for E15 aka “unleaded 88.” Furthermore, midwestern Senators have criticized the EPA for granting the refinery waivers and not reallocating them to other obligated parties to make up for the lost gallons.

    Meanwhile, Republican oil state senators are urging President Trump to fight the court ruling, raising the possibility that last-minute pressure could spur the White House to alter course. Senators Barrasso and Enzi of Wyoming , as well as Sens Crapo (Idaho), Daines (Montana), Lee (Utah), Cruz (TX), Wicker (MS), Toomey (PA), Lankford (OK), Kennedy (LA), Shelly Moore Capito (W.Va.), Inhofe (OK) and Risch (Idaho) sent a letter yesterday noting that if the ruling is allowed to stand, dozens of those facilities will be put “under severe financial strain and thousands of jobs would be jeopardized.“

    According to Chet Thompson, president of the American Fuel and Petrochemical Manufacturers, “This decision would deprive EPA of a critical tool used to help small refineries disproportionately impacted by the RFS.” He added, “We hope the EPA will appeal this ruling and at the very least limit its impact to the 10th Circuit.”

    Also, because of the reduction of exemptions, EPA may revise its blending mandate for this year. Currently, the rule requires refiners to blend an extra 770 million gallons to make up for small refinery exemptions that are now unlikely to be issued.
    CDC Recommendations for Businesses Regarding Coronavirus
    Trump Administration to Use Portion of LIHEAP Funds to Fight It
    As reported on February 14 by PMAA, the Centers for Disease Control and Prevention (CDC) has posted interim guidance for businesses and employers to plan and respond to the 2019 novel coronavirus, now officially renamed COVID-19. Click here to view the guidance. CDC will update this interim guidance as needed and as additional information becomes available. For general and other useful information regarding COVID-19, please click here. CDC print resources to share with employees are also available here, including, “What you need to know” and “How to stop the spread of germs”

    To fund the fight against the coronavirus, the Trump Administration announced this week that it will be shifting up to $136 million in funding from certain health programs. Unfortunately, however, of that $136 million, more than $37 million dollars is expected to be tapped from the Low-Income Home Energy Assistance Program (LIHEAP) that is vital in serving low income consumers of home heating fuel. PMAA is working with the National Energy and Utility Affordability Coalition (NEUAC) to respond appropriately.
    WOTUS 2.0 Challenged by Environmental Groups
    In a step to challenge the Administration over the new Waters of the United States (WOTUS) rule, environmental groups filed a Notice of Intent (NOI) on February 18 to sue EPA and the U.S. Army Corps of Engineers. The rule which was finalized on January 23, 2020 is important to marketers because it removed barriers imposed by the Clean Water Act (CWA) to development of areas categorized as “wetlands” that are dry except for occasional severe storm runoff. The Trump Administration's WOTUS 2.0 shrinks the number of creeks, bogs and marshes that fall under federal authority by limiting the definition of “adjacent waterways” that trigger areas for federal protection as wetlands.

    For the first time, the agencies are streamlining the definition so that it includes four simple categories of jurisdictional waters, provides clear exclusions for many water features that traditionally have not been regulated, and defines terms in the regulatory text that have never been defined before. Congress, in the CWA, directed the Agencies to protect “navigable waters.” The Navigable Waters Protection Rule regulates these waters and the core tributary systems that provide perennial or intermittent flow into them.

    Under the final rule, four clear categories of waters are federally regulated: the territorial seas and traditional navigable waters; perennial and intermittent tributaries to those waters; certain lakes, ponds, and impoundments; and wetlands adjacent to jurisdictional waters. The final rule also details 12 categories of exclusions, features that are not “waters of the United States,” such as features that only contain water in direct response to rainfall (e.g., ephemeral features); groundwater; many ditches; prior converted cropland; and waste treatment systems. The final rule clarifies key elements related to the scope of federal Clean Water Act jurisdiction, including:
    • Providing clarity and consistency by removing the proposed separate categories for jurisdictional ditches and impoundments.
    • Refining the proposed definition of “typical year,” which provides important regional and temporal flexibility and ensures jurisdiction is being accurately determined in times that are not too wet and not too dry.
    • Defining “adjacent wetlands” as wetlands that are meaningfully connected to other jurisdictional waters, for example, by directly abutting or having regular surface water communication with jurisdictional waters.
    • The Navigable Waters Protection Rule is the second step in a two-step process to review and revise the definition of “waters of the United States” consistent with the February 2017 Presidential Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States.’”
    The EPA and the Army held a public webcast to help explain the key elements of the final Navigable Waters Protection Rule earlier this month. The webcast was recorded and the link is available here.

    The NOI was filed in the U.S. District Court for the District of South Carolina, the groups, collectively known as Waterkeeper, as well as other groups including the Center for Biological Diversity, Center for Food Safety, Turtle Island Restoration Network, Monterey Coastkeeper, Missouri Confluence Waterkeeper, Rio Grande Waterkeeper, Snake River Waterkeeper, and Sound Rivers. 
    Donations Needed for the D.C. 2020 Silent Auction!
    Last Year There Was Tremendous Support in Contributions for the Auction
    It’s time to begin anticipating the excitement that you will have at PMAA’s Small Business Committee (SBC) PAC Silent Auction. It is also time for PMAA to begin urging you to contribute items for the PAC Silent Auction! The Auction will take place in conjunction with PMAA’s Washington Conference on May 13 during the welcome reception.

    Last year there was tremendous support in contributions for the auction and PMAA SBC PAC Co-Chairs Brad Bell and Tim Keigher urge your participation this year as well! Brad and Tim wish to remind you that donations can include use of personal vacation properties. PMAA also encourages contributions of some low-cost items for the auction so that everyone can bid!
    We again thank Lea Wilson and the Washington Oil Marketers Association (WOMA) for providing this year’s first 2020 PMAA Small Business Committee (SBC) PAC Silent Auction items! WOMA donated a beautiful and stylish Citizen EcoDrive Glow in the Dark Blue Band Men’s Watch which includes a 5-year warranty from Citizen!

    We want to remind you about our format for the Annual Silent Auction and Raffle. This will be our second year with C2Auctions. They will organize the PMAA SBC PAC Silent Auction and the Raffle during our PMAA Day on the Hill Conference. All PMAA members will be eligible to participate from anywhere in the United States as long as they download the C2Auction App on their mobile phone. We will provide a mobile link to all PMAA Association Executives prior to the event.

    The purpose of mobile bidding is to make the PMAA SBC PAC Silent Auction more competitive and fun by notifying bidders the instant they are outbid. A notification informs the bidder that they are no longer winning, and to increase their bid or begin bidding on a new item. The ability to react in real-time means more bids.

    If you would like to support the PMAA SBC PAC and have items that you would like to contribute for the Silent Auction, please contact Sabrina Pitcher at 703-351-8000.
    PMAA Member Services Spotlight Featuring: National Purchasing Partners (NPP)
    Introducing New UniFirst Program
    Members receive up to 60 percent OFF UniFirst rental and lease rates with NPP
    PMAA Members can enjoy specially negotiated rates from UniFirst, a full-service employee uniform and facility services provider. Nearly two million people go to work each day in a uniform hygienically cleaned, finished and delivered on a regular schedule by UniFirst. Sign up with NPP and schedule an on-site consultation with UniFirst. Learn how to keep your employees, your facility and your bottom line looking great!
    Enroll your business for FREE here.

    NPP is a member benefit provider of PMAA. Restrictions may apply. 
    Have You Considered Marketing Your Product or Service in PMAA Online Buyers' Guide in 2020?
    The Petroleum Marketers Association of America ("PMAA") exclusive PMAA Buyers’ Guide ((the "Guide") — the premier resource of relevant products and services for petroleum professionals — is available at the PMAA website.

    PMAA partners with Overland Park, Kansas-based Strategic Value Media, a leading nationwide provider of print and digital media solutions for national, state and local trade and membership associations. PMAA is proud to provide its members with this useful and easily accessible year-round resource.

    The 2020 version features updated and expanded company and product listings, in addition to other valuable information relating to the petroleum industry. The Guide provides PMAA members and other industry professionals with an efficient way to browse for goods and services and also offers petroleum suppliers and companies exceptional visibility by showcasing their products and services to a targeted, industry-specific buyer group.

    If your company or business has not yet taken advantage of this exceptional opportunity to highlight your products and services here, it is not too late! To learn more about advertising your products or services in this exclusive Guide, please email.
    Make Your Hotel Reservations and Register Now for PMAA’s Washington Conference and Day on the Hill
    PMAA’s annual Washington Conference and Day on the Hill will be held in our Nation’s Capital of Washington, DC from May 13-15. Our industry continues to have important legislative and regulatory issues to discuss and the Day on the Hill continues to be the primary focus of this conference.

    The meeting will begin with an Opening Session / Issues Briefing and Region meetings the afternoon of May 13. Our welcome reception, including our fun and popular PAC silent auction fundraiser, concludes the day! On the morning of May 14, marketers will head to Capitol Hill for visits with their Congressional delegations after a buffet breakfast and issues briefing for those who were not able to attend the opening session. Please make your Congressional appointments as soon as possible. There will be a hospitality suite and luncheon on the Hill. On the evening of May 15, we will feature our 2020 PMAA Chair Aaron Littlefield along with honoring our other Past Chairs in attendance. Our conference will conclude after the PMAA Board of Directors meet on May 15 following a buffet breakfast and committee meetings.

    Please click here for our event website for all available details including registration. Reminder invitations will be sent out soon to members and Corporate Partners who have attended PMAA Conferences in the past. We encourage you to register for the meeting prior to making your travel arrangements. We are expecting record attendance with over 250 members who have made hotel reservations and nearly 100 members currently registered! May is a peak month here in Washington, DC where hotels book quickly and there are many citywide events also going on during our conference. Please be sure to review the Hotel and Travel section of the event website. 

    Please make all of your plans now to attend this important and productive forum to meet with your members of Congress and network with other marketers from across the country! It is your chance to make a positive difference for our industry!

    See you in DC in the Spring! 
    PMAA Platinum Partner Spotlight Featuring: Meridian Associates, Inc.
    Blueprint for Mega Growth Success by Betsi Bixby
    There is an insatiable thirst in our industry for size. For decades, small family companies dominated the petroleum industry providing outstanding service to local customers with a high degree of intimacy and relationship. But now, industry media is filled with merger announcements. My own company is helping many petroleum companies buy, sell and merge. Some previously small family companies are morphing into regional and national powerhouses. Will they succeed? What can be learned about mega growth success and failure from industries outside petroleum?

    In groundbreaking research just released, David Thomson, a former technology executive and management consultant provided the blueprint for mega growth success by studying what it takes to go from a small company start-up to a billion-dollar company. He created the blueprint through intense number crunching analysis of 7,454 American companies that went public. The findings have profound implications for any petroleum company bent on mega growth success.

    Through careful study, Thomson identified seven drivers of mega growth success.

    To learn more about PMAA’s Corporate Platinum Partner, Meridian Associates, please visit or contact them at 800.728.9005.