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December 1, 2016
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Safety & Compliance

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The last month of 2016 has arrived. Compare what has happened to what GAWDA distributor members foresaw when the year was young. The 2016 forecast story in Welding & Gases Today is here.
 
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Featured Articles

FDA Publishes New Final Rule for Medical Gas Containers 

GAWDA's FDA and Medical Gases Consultant Thomas L. Badstubner has alerted GAWDA members to a new final rule for medical gas containers.

Badstubner issued the following memo:

On Friday, Nov. 18, 2016, the FDA published a Final Rule regarding “Medical Gas Containers and Closures; Current Good Manufacturing Practice Requirements.”

This rule will change the regulations to, among other things, require similar provisions as CGA SB-26 (tamper-proof connections on portable cryogenic containers, 360 degree wrap-around labeling, color codes, etc. You can see the official text here. Let me know if you would like an annotated copy in PDF format.

The FDA has accepted many of our suggestions from 2006 in developing the Final Rule, but there are a few surprises. For example, the agency has specifically exempted medical air from the requirements. So far, we can see no good reason for the exemption. The agency has also mentioned validated cylinder cleaning in the final rule and this may/may not become significant. As we better understand the agency’s thinking, I will keep you informed.

This article is just to give you a heads-up that this compliance issue will need attention over the next several months. The rule gives us 180 days to comply. Since CGA SB-26 has been published for sixteen years, you are likely in substantial compliance with most of the details and we will be working with the Compressed Gas Association to get clarity from the agency where needed. We may be asked to contact our congressional representatives, as we have in the past, to get the agency’s attention.

In the meantime, please take the following Four Critical Action Steps outlined here.

1) Get SB-26. Go to cganet.com and download the latest version of CGA SB-26. This publication, and all CGA publications, are free to GAWDA members who participate in the GAWDA/CGA Safety Program. Otherwise the cost is only $5.

2) Make sure all of your liquid containers are compliant with the simple requirements in SB-26. (Tamper-Proof connections, etc.) See the appendix for examples of acceptable and not acceptable portable cryogenic container connections.

3) Train Pumpers. Be certain that your cryogenic container filling personnel and supervisors understand the critical elements of CGA SB-26 that apply to them. Contact tom@asteriskllc.com for a sample quiz and answer key for identifying acceptable portable cryogenic container outlet connections.

a) Medical portable cryogenic container outlet valves must be fitted with tamper-proof connections

b) Industrial portable cryogenic container outlet valves must be fitted with tamper-evident or tamper-proof connections. This includes (N2O, CO2, Ar, N2, O2).

c) Cryogenic containers should be labeled according to CGA C-7, Guide to Classification and Labeling of Compressed Gases, including the 360-degree wraparound label.

4) Train Drivers. Be sure your drivers understand the critical elements of CGA SB-26 that apply to them:

a) How to recognize medical versus industrial containers. The label is the primary identification for medical gases. The 360-degree wraparound tape and other measures are secondary identification techniques.

b) Never use an adapter to connect a cylinder/container to a customer system.

c) Never change an outlet connection.

Advise tom@asteriskllc.com if you have any questions. Click here to see this memo in full and photos of acceptable and unacceptable examples.

Court Ruling Puts New Federal Overtime Rules On Hold

Rates for Salaried Workers Were Set to Change Today

New federal overtime rules set to go into effect today are on hold. GAWDA General Counsel Richard Schweitzer shared the following with members:

A federal court judge in Texas has issued a nationwide preliminary injunction against the new salary threshold for exemption from overtime requirements for executive, administrative and professional (EAP) employees  that were scheduled to go into effect on December 1, 2016.  State of Nevada v. U.S. Department of Labor, No. 4:16-CV-00731, U.S. District Court for the Eastern District of Texas, decided November 22, 2016. 

Twenty-one states had filed suit in federal court against the U.S. Department of Labor’s new overtime rules.  In addition, a separate lawsuit challenging the overtime rules was filed in the same court by a coalition of 50 local and national business groups, including the U.S. Chamber of Commerce, National Association of Manufacturers, National Association of Wholesaler-Distributors, National Retail Federation, and the National Federal of Independent Businesses.
 
The new rules would have raised the salary threshold for executive, administrative and professional employees to be exempt from overtime requirements, which require employers to pay at least one and one-half times the regular pay rate for each hour an employee works beyond 40 hours per week. The DOL final rule had raised the exemption threshold from $455 per week to $913 per week, or $47,476 annually.
 
The ruling keeps in place the current overtime requirements, and GAWDA members do not have to comply with the changes to the salary threshold for executive, administrative and professional employees that were scheduled to become effective on December 1, 2016.
 
Judge Amos L. Mazzant, an Obama appointee to the federal bench, ruled that the Department of Labor had exceeded its delegated authority and ignored Congress’s intent by raising the minimum salary level such that it supplants the duties test for exemption from overtime pay. Judge Mazzant said that in the Fair Labor Standards Act (FLSA), Congress defined the EAP exemption to depend on an employee’s duties rather than on an employee’s salary. 
 
Despite this clear intent in the FLSA, the DOL final rule states, “[w]hite collar employees subject to the salary level test earning less than $913 per week will not qualify for the EAP exemption, and therefore will be eligible for overtime, irrespective of their job duties and responsibilities.” Judge Mazzant held that only Congress can make that change in the law.

The ruling does not outlaw all salary-level tests for overtime exemption, however; the opinion only considers the test as set out in the current final rule.
 
Further, this ruling is not a final decision on the merits of the case. It merely preserves the status quo while the court considers the merits. But given that the opinion states that the plaintiffs are likely to succeed on the merits, the court has clearly signaled how it will ultimately rule.

The decision also noted that because the final rule is likely to be held unlawful, the automatic mechanism to update the salary threshold every three years is also likely to be struck down.

The Department of Labor is considering its legal options in response to the court decision. But a new Secretary of Labor in the incoming Trump Administration is not expected to support these salary-level changes to the overtime exemption rule.

 

Time for Scholarship Donations and Applications

As 2016 rushes to a close, it is time to think about the 2017 GAWDA Foundation Scholarship program.

Know a student who could benefit from the scholarship program? Next year, GAWDA plans to award 12 scholarships for $2,000 to children and employees of active GAWDA member companies. Applications for the 2017 GAWDA Foundation Scholarship program are available online, here.

Ready to join your fellow GAWDA members in supporting the GAWDA Foundation Scholarship program? Donations from members, up to $25,000, will be matched by GAWDA, doubling the power of your gift. To donate, click here.

Member News

Matheson to Build ASU in Louisiana to Serve Lotte

Rosenthal Joins GAWDA Member Services Committee

GAWDA News

GAWDA Membership Renewal Discount Still Available

The GAWDA Board of Directors has approved a 15 percent discount for all membership renewals paid before December 31. Members who renew after that date must pay the full amounts. There will be no extensions.

Membership renewal notices were sent out in October.

For questions about membership renewal, the 15 percent discount or other matters dealing with membership, contact Membership Services Manager Stephen Hill at 954-367-7728 ext. 220, or shill@gawda.org. You can also contact Accounting Associate Bruce Ellenbogen at  954-367-7728 ext. 230, or bellenbogen@gawda.org.

Have You Saved the Date for Spring Management Conference?

Check your 2017 calendar to be sure you've saved the date for the Spring Management Conference, May 11-13 at the Boca Raton Resort & Club in Boca Raton, Fla.

For more information on the SMC, visit GAWDA.org.

Upcoming Events
May 11-13 • Boca Raton, Florida
Spring Management Conference

May 31 - June 1, 2017 • Atlantic City, N.J.
Regional Meeting

June 12 - 14, 2017 • Seven Springs, Pa.
Regional Meeting
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The GAWDA Connection is distributed on the 1st and 15th of each month to all GAWDA members as a membership service of GAWDA, the Gases and Welding Distributors Association, One Oakwood Blvd, Ste 195, Hollywood, FL 33020. Neither GAWDA nor Data Key Communications, their Data Key Communicationsofficers, directors, members and staff are responsible for contents or opinions other than those concerning Association activities. Copyright © 2016 Data Key Communications. All Rights Reserved. No portion of this newsletter may be reproduced in whole or in part without written permission of the publisher.
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